These students, who will be given a short-term J-1 visa, get the opportunity to interact with U.S. citizens, experience U.S. culture while sharing their own cultures with Americans they meet, travel in the United States, and work in jobs that require minimal training and are seasonal or temporary. Such jobs let them earn funds with which to help defray a portion of their expenses. You, as the employer, benefit from access to a pool of talented, educated young workers when you need them most. This article will describe some of the details of utilizing this J-1 program opportunity in your business, including.
The J-1 seasonal work program is not available to your company if you’re looking to fill certain types of positions. These include, for example:
For more information and details, see the government regulations at 22 C.F.R. § 62.32(h).
To hire J-1 students for your seasonal needs, you will work with one of the many companies and organizations that act as J-1 seasonal employee sponsors. See the government's Designated Sponsor Organizations By Program page.
For a fee, the sponsor can serve as your staffing agency, determining your hiring needs and advertising your job openings abroad.
The sponsor, often through its agents in foreign countries, can help identify and recruit foreign students, and arrange interviews to take place either in the U.S. or abroad. Sponsors will ensure that the students are able to speak English and are aware of any contractual obligations related to their acceptance of paid employment with you.
Sponsors will arrange to put you in touch with a student workforce no matter the season during which you experience a demand for extra labor. Although the J-1 seasonal work program is often referred to as “summer work/travel,” it doesn’t necessarily mean the U.S. summer. Rather, the program is for students on their break between academic years. Across the globe, it’s always summer for students somewhere!
Sponsors also have ongoing obligations to the students they place, and will be expected to be in monthly contact (at a minimum) and to act as facilitators, counselors, and information resources, as needed.
You must pay your J-1 seasonal workers the prevailing local wage, which is either the applicable state or the federal minimum wage, whichever is higher.
If your J-1 employees work overtime, you must pay them for it in accordance with your state’s employment laws. Also, you must provide students the number of hours of paid employment per week that you promised in the job offer.
In recent years there has been concern about employers misusing the J-1 seasonal worker program and exploiting the foreign student workforce. You should keep in mind that the program is fundamentally one for cultural exchange, and the sponsor will be monitoring the employment situation for compliance with program requirements.
Under the regulations, you have to notify sponsors promptly when students arrive at your work site; when you need to reassign students to a different type of work; when students are not meeting the requirements of their jobs; and when a student quits the job early for any reason. You must contact sponsors immediately in the event of any emergency involving students or any situation that impacts their welfare.
For a full analysis of the possibilities for your business, and help navigating the bureaucratic details, consult an experienced immigration attorney.
(For the law on R-1 visas, see the federal Immigration and Nationality Act at I.N.A. § 101(a)(15)(R), 8 U.S.C. § 1101(a)(15)(R) and the Code of Federal Regulations at 8 C.F.R. § 214.2(r).)
I hear that clergy, nuns, monks, and religious brothers and sisters qualify as religious workers to get either an R-1 visa or an EB-4 green card (immigrant visa) to work in the United States. But what about the other category allowed under the R visa or for green card sponsorship, for a "religious occupation?"
Our church in the U.S. just opened a new site. Most of our members are from another country and speak its language. Therefore, we prefer that they be church members from that country. As we start hiring, what types of positions can we fill with R-1 visas or later sponsor for green cards? The jobs we are considering now are choir director, office administrator, and janitor. Can we sponsor people for R-1 visas and ultimately for green cards to work in these roles?
A religious occupation, under U.S. immigration law, is one that primarily relates to a traditional religious function recognized as such by the denomination, which clearly involves teaching or carrying out the denomination's religious creed and beliefs, and which is not primarily of an administrative or support nature. The job therefore must be an established one within the religion and involve furthering the religion's mission and purpose. Even if the job involves non-religious activities (such as administrative work), the majority of the "religious occupation" worker's duties must have a direct religious purpose.
Examples of jobs that may qualify are liturgical workers, religious instructors or counselors, cantors (choir leaders), catechists, workers in religious hospitals or religious health care facilities whose duties involve furthering the religion's creed and beliefs, missionaries, religious translators, and religious broadcasters.
You might need to provide evidence showing the religious nature of the person’s work. For example, for a choir director, you'd supply evidence that he or she works directly with the minister to choose appropriate music for the choir program. Also make sure your church has sufficient need for a choir director to fill this person's time, such that the person you sponsor will concentrate on choir leadership activities.
Examples of occupations that will NOT qualify are janitors, maintenance workers, clerical and secretarial employees, fundraisers, and so on.
Finally, for the R-1 visa, the job must be at least 20 hours per week.
To sponsor a religious worker for a green card (an EB-4 visa), the job must be at least 35 hours per week. If you want to sponsor just a part-time choir director, that person also could work part-time for another church that also sponsors him or her for an R-1 visa. Each organization that wants to employ an R-1 religious worker must file its own visa petition for the person.
I've lined up a job in the U.S. that might qualify me for an R-1 visa. How long will it allow me to stay?
R visas are granted initially for up to 30 months. If you apply for and receive extensions, these can take you to a maximum of five years total. If you spend time outside the U.S. while you hold an R-1 visa, it does not count toward the maximum U.S. stay. (That's according to a USCIS policy that began in 2012.) You will, however, need to show proof of the length of your absence.
Unlike with some visas, there is no grace period allowing you to pack up and prepare to leave after your stay is over. You must leave the U.S. immediately upon the end of your R-1 employment.
Our church filed an R-1 petition to sponsor a new pastor. We sent the petition to USCIS two months ago, but its website says the current processing times are five months. We heard about an option to pay an additional fee and have USCIS approve the petition, guaranteed, within 15 days. If we were willing to pay this, could we get our new pastor here sooner than the normal five months?
Your question relates to what’s known as the Premium Processing Service. For some types of application, if you file USCIS Form I-907 and pay an additional fee, U.S. Citizenship and Immigration Services (USCIS) guarantees it will approve or deny your petition within 15 calendar days; unless it can’t, because it must request additional documents or information from you first. (In such a case, USCIS begins a new 15-day clock upon receiving your response.)
The USCIS premium processing fee went up to $1,685 on February 26, 2024.
For R-1 applications, the key question is whether USCIS has completed its site visit of your facility. Part of the R-1 petition process involves USCIS sending a person, typically a contract investigator, to verify the legitimacy of your organization and the proposed employment. The site visit may involve a tour of your primary and branch locations, an examination of relevant documents, and interviews with your employees and church officials. If USCIS has already completed your site visit, you may use the Premium Processing Service.
Unfortunately, paying this extra fee will not hurry up the site visit. And, many petitioners find that USCIS takes many months to schedule and complete the site visit. Even if an investigator from USCIS already visited your facility, that doesn't necessarily mean the site visit is done. The investigator must submit a report back to the USCIS officer reviewing your R-1 petition. Only after that report is on file and accepted could you submit a Premium Processing request.
So, if the investigator happens to visit today, you should perhaps wait a week or two before submitting the Premium Processing request. If the site visit has been completed, USCIS will cash your check and start the 15-day clock. If not, you'll get your check and Form I-907 back by regular mail. Of course, you can try again a week or two later.
Unfortunately, the site visit is one of the unpredictable elements of the R-1 petition process. No clear guidance exists on when it happens or how long it will take. There's thus a bit of guesswork involved in deciding when to submit the Premium Processing request. Consult an experienced immigration attorney if you want help in monitoring this process and developing a strategy for getting an approval as soon as possible.
]]>To read more about E-2 substantive requirements, see E-2 Visa for Treaty Investors in the U.S.: Who Qualifies?
After determining that your business and prospective employee can meet the E-2 eligibility requirements, you need to figure out where and how to apply. This article addresses the where and how for workers coming from outside the United States. (For workers already in the U.S. in another nonimmigrant category, see How to Sponsor a Foreign Worker Who's Already in the U.S. for an E-2 Visa.)
To work for an E-2 qualifying business in the U.S., your prospective hire outside the U.S. must secure an E-2 visa at a U.S. embassy or consulate abroad and use it to enter the U.S. in E-2 status. Ordinarily, the visa application process unfolds in three steps:
Some consulates and embassies register U.S. businesses for E-2 classification and retain the E-2 qualifying corporate information after they've approved an initial visa. This registration eliminates the second step for any subsequent E-2 hires, letting them pass more quickly from application to interview.
The DS-160 form used for E-2 visa applications is the same electronically filed application form that's used for nearly all nonimmigrant visas. Though either you or your employee can fill out the form, the instructions explicitly state that the applicant (that is, your employee) must personally press the final "sign application" button. Thus, if you complete the form, you'll need to save it online and instruct your prospective employee how to retrieve and "sign" it.
The form, accessed at https://ceac.state.gov/genniv/, can be somewhat annoying to use, because it is presented as a sequence of screens, each asking for a small amount of information. Since the user can neither see the form as a whole nor progress from one screen to the next without supplying the requested information, filling it in can be a stop-and-start affair. And if you stop for more than 20 minutes without saving, you lose whatever you've input. To save and come back to the form later, you have to record an application number on the top right hand corner of the page. Be sure to write down that number first thing. If you’re filling the information yourself instead of your employee, be prepared to either save often or make sure your employee is accessible to answer questions about personal information. The website claims it will take about 90 minutes to complete.
After "signing" the application and submitting it online, your employee should print out the confirmation page for filing at the consular post along with the packet of E-2 supporting documents.
After the E-2 online application has been submitted, you will need to complete the E-2 visa application by submitting physical forms and documents to the U.S. consulate or embassy (known as a “consulate post”) in your home country. The E-2 visa packet must contain the confirmation page from the online DS-160 application along with Form DS 156E and supporting documents.
Form DS-156E is a three-page form requiring you to set forth the E-2 qualifying characteristics of your business and prospective employee. Though all U.S. consular posts use this same basic form to collect E-2 qualifying information, each individual consular post has its own instructions for what to include in the E-2 visa packet and how they want it presented. Most consular posts offer specific instructions on their websites, which you should definitely check before assembling the E-2 visa packet. Some posts go so far as to specify the tabs under which they expect to find particular documents in the visa packet.
The instructions to Form DS-156E provide good general guidance concerning E-2 supporting documents. As outlined there, these are the kinds of documents you can submit to establish the E-2 requirements:
Again, though, this is general guidance. No set list of supporting documents could cover all types of E-2 eligible businesses. What documents you should present will depend on the nature of your business. For instance, a publicly traded corporation might demonstrate its foreign ownership through a stock exchange listing, while a closely held corporation will typically present copies of stock certificates and its owners' passport identification pages. To establish that the business is not marginal, a sole proprietor might present personal income tax returns, proving that the business generates more than enough income to sustain the investor's family, while a larger company would submit evidence such as payroll records to prove it generates economic activity by employing people.
Needless to say, the E-2 packet needs a good cover letter to assist the consular officer in making sense of your documents and how they satisfy the E-2 requirements.
Follow the directions at the consular post's website for delivering the E-2 visa packet. Some posts provide information about how long they will take to review the packet. At some posts, a backlog of E-2 visa applications will add to the review time. Because of the complexity of the application and the possibility of a backlog, expect and plan for a substantial wait between your submission of the visa packet and the scheduling of an interview for your employee.
Every consular post has its own procedures for scheduling and conducting visa interviews; the individual consular websites provide specific instructions.
At the interview, an E-2 visa applicant can expect close questioning about the nature of the work to be performed in the U.S. and the applicant's qualifications to perform that work. Make sure to give your prospective employee an opportunity, before going in for the interview, to review the E-2 visa packet you submitted to the consular post.
Your prospective E-2 employee should also be clear about coming to the U.S. for a limited stay, intending to return when the temporary E-2 employment ends. (See Consequences of Overstaying a U.S. Visa or I-94.)
Visa application fees are generally paid before the employee’s consular interview. A second fee, sometimes called a “nonimmigrant visa issuance” fee or "reciprocity" fee, may be required when the visa actually issues, depending on how the applicant's home country charges U.S. citizens for similar visas.
An E-2 visa will generally be granted for a five-year term during which the visa is valid, though nationals of some countries are granted shorter terms. On entering the U.S. with an E-2 visa, your employee will be granted a certain period of stay in E-2 status, most likely two years. Typically, the admitting officer will stamp and annotate both the employee's passport and a small white card, Form I-94, to reflect the authorized period of stay. It's this I-94 card, and not the validity period of the visa itself, that governs your employee's immigration status within the United States.
You and your employee must track the expiration date on the I-94. Before the I-94 expires, you can extend your employee's status by filing a petition with USCIS. (For information on filing a USCIS petition, see How to Sponsor a Foreign Worker Who's Already in the U.S. for an E-2 Visa.)
Theoretically, E-2 status can be extended indefinitely by the filing of a petition every two years. But USCIS does require persuading anew each time, and employers are frequently asked to present evidence that U.S. workers are not available for the job in question.
Alternatively, an employee whose E-2 visa is still valid can travel and reenter the U.S. to be granted a new period of stay. Each time the employee reenters the U.S. while the visa is still valid, the immigration officer at the point of entry should grant a new two-year period of stay. Thus, through strategic traveling, an E-2 visa holder could parlay a five-year visa into a seven-year stay without ever having to reestablish E-2 qualifications.
Spouses and unmarried children under 21 years old can obtain dependent E-2 classification to accompany or follow the E-2 employee to the U.S. They do not even have to be the same nationality as the E-2 employee. Spouses of E-2 employees can even legally work in the U.S. during their stay.
The process of applying for a dependent E-2 visa for an employee’s spouse or minor child who is outside of the U.S. is similar to the process of applying for your employee. It can be done at the same time as applying for your employee’s E-2 visa or after the employee’s visa has been approved. You, your employee, or the spouse will fill out the same online Form DS-160 and pay the relevant fee and schedule an interview at the consular post in the employee’s home country.
Helpfully, the online portal for the online Form DS-160 allows you to create a family or group application, which will auto-populate certain information on any subsequent applications created within the family/group. After filling out the form for the employee, the confirmation page will have an “Email Confirmation” option, which leads to a “Thank You” page. On that “Thank You” page, there is an option to create a family or group application. Any data that auto-populates is editable before submission.
As with the principal E-2 employee visa, each consular post will have different instructions as to what documents they require. The derivative spouse or child applicant will also need to provide the confirmation page from the submitted Form DS-160. The derivative applicant will almost certainly also need to provide proof of their qualifying relationship to the employee, such as an original marriage or birth certificate, and proof that the marriage is bona fide, such as wedding photos or joint utility bills. For a list of documents that can help prove a bona fide marriage, see Documents to Bring to Your Marriage-Based Adjustment of Status Interview.
]]>To read more about E-2 substantive requirements, see E-2 Visa for Treaty Investors in the U.S.: Who Qualifies?
Once an employer determines that the business and prospective employee can meet the E-2 eligibility requirements, it needs to figure out where and how to apply. This article addresses that topic for workers already in the United States. (For workers coming from outside the U.S., see How to Sponsor a Foreign Worker (Coming from Outside the U.S.) for an E-2 Visa.)
An employer can file a petition with U.S. Citizenship and Immigration Services (USCIS) to change the status and extend the stay of a prospective employee who is already in the U.S. in another nonimmigrant (temporary) status.
The form used for this is USCIS's Petition for a Nonimmigrant Worker, Form I-129. It consists of several pages requesting information required for all of the different types of nonimmigrant worker petitions (including E-2 employees), followed by several sets of supplementary pages for the specific visa categories. The “E” visa supplement requires the employer to set forth the E-2 qualifying characteristics of the business and prospective employee.
USCIS publishes instructions for Form I-129, which include specific information for each nonimmigrant worker petition, including E-2 investors and employees. However, it does not provide a lot of detail on the specific requirements for E-2 petitions, and it does not clearly explain that the information for investors also applies to employees. USCIS requires each E-2 employee visa petition to provide information and supporting documents establishing the E-2 qualifications of the business, even when USCIS has already determined that the business qualifies by granting a visa to the investor.
Better advice concerning the kinds of documents needed to establish E-2 qualifications appears in the State Department's instructions for Form DS-156E, used for E-2 investor visa applications and for E-2 employees who are physically outside the U.S. As outlined there, these are the kinds of documents an employer can submit to establish that the business meets the E-2 requirements:
Of course, form instructions can provide only general guidance. No list of supporting documents could cover all types of E-2 eligible businesses. What documents a business presents depends on its nature. For instance, a publicly traded corporation might show the requisite foreign ownership through a stock exchange listing, while a closely held corporation will typically present copies of stock certificates and owners' passport identification pages.
To establish that the business is not marginal, a sole proprietor might present personal income tax returns, proving that the business generates more than enough income to sustain the investor's family, while a larger company would submit evidence such as payroll records to prove it generates economic activity by employing people.
In addition to the documents qualifying the business, USCIS requires evidence that the prospective employee meets the E-2 requirements and is eligible to change status:
Needless to say, the E-2 petition packet needs a good cover letter to assist the USCIS adjudicator in making sense of the documents and how they satisfy the E-2 requirements.
Additionally, one of the requirements for E-2 employees is that they must occupy executive or supervisory positions, or serve in a lesser capacity but have special qualifications that are essential to the business. Some job titles are not obviously executive or supervisory positions on their face. For “special qualifications” positions, USCIS will need to be convinced that the position is essential. A good attorney can write a cover letter with a detailed job description to demonstrate how the position and employee both qualify.
Through March 31, 2024, the USCIS petition fee for an I-129 is $460.
However, on April 1, 2024, USCIS's fee structure will change, and the I-129 fee will depend in part on which visa category the employee fits into. For an E-2, the fee will be $1,015. In addition, employers will need to pay a new Asylum Program Fee. The standard amount will be $600, but $300 for small entities that employ 25 or fewer full-time workers. Nonprofit entities will not be required to pay the Asylum Program Fee at all.
The fee is ordinarily paid by a check or money order made out to the U.S. Department of Homeland Security and submitted along with the petition. (A credit card can be used only when submitting to a USCIS lockbox, but the I-129 goes to a regular USCIS service center.)
No rules govern who pays, but since the employer signs and submits the petition, the employer generally produces the payment as a practical matter.
Check the USCIS website for filing fee and location just before filing, as both change periodically. As of early 2024, the I-129 was not among the forms that could be filed online.
USCIS typically grants E-2 status for an initial term of two years. If the prospective E-2 hire contemplates travel outside the U.S. during the first two years of employment, consular processing might make the most sense from the beginning, even where a USCIS petition is possible.
This is because the employee will need to get a visa at a consular post to reenter the U.S., and, unlike other types of nonimmigrant petitions, the E-2 petition has no force at all at a consular post. Whereas, say, an H-1B employee needs only present an approved unexpired USCIS petition at a consulate abroad to support the basic visa application form, an E-2 employee will need to make a completely new visa application with all the required supporting documents: So why not just go for a visa from the outset?
(For information on how to apply for a visa through a consulate, see How to Sponsor a Foreign Worker (Coming from Outside the U.S.) for an E-2 Visa.)
What's more, an employee granted a five-year E-2 visa can extend status within the U.S. simply by leaving and reentering (see discussion below).
On approving an E-2 petition, USCIS issues an approval notice to the employer that includes a status document for the employee. The notice is perforated so that one can tear off the bottom portion, the I-94 card, and give it to the employee to serve as evidence of status. The employer and employee must track the expiration date on the I-94. Typically, E-2 status is granted for an initial two-year term.
Before the I-94 expires, the employer can extend your employee's status by filing a second petition with USCIS. Theoretically, E-2 status can be extended indefinitely by the filing of a petition every two years. But USCIS does require persuading anew each time, and employers are frequently asked to present some evidence that U.S. workers are not available for the job in question.
An employee who has processed abroad for an E-2 visa will normally be admitted with a two-year period of stay on entering the United States. Since the visa itself is typically issued for a five-year term, the visa-holding employee will have an alternative to a USCIS petition for extending status, namely traveling and re-entering.
With each reentry during the life of the visa, the immigration officer at the point of entry should grant a new two-year period of stay. Thus, through strategic traveling, an E-2 visa holder could parlay a five-year visa into a seven-year stay without ever having to reestablish the E-2 qualifications.
It is important to note that the expiration date on the I-94 is the expiration date to pay attention to, and not the date on the visa itself. Even if the visa expires later than the I-94, the visa holder will fall out of legal status when the I-94 expires.
Because of the complexities of U.S. immigration law and the fact that your time running a business is valuable and likely in short supply, you would greatly benefit from the assistance of an experienced immigration attorney.
]]>Employers are required to retain immigration paperwork only when they hire H-1B workers (detailed further below).
But as a broad rule, employers should keep a copy of the entire immigration petition filed on behalf of each and every foreign worker—which means copies of all forms and documents the employer submitted to U.S. Citizenship and Immigration Services (USCIS) and any relevant communication from USCIS, such as the I-797 Approval Notice, I-797 Receipt Notice, Requests for Evidence (RFEs), and so forth.
Additionally, employers should supplement their immigration record with copies of the worker's pay stubs, so as to keep proof of having paid the worker as required.
Better to be safe than sorry: An employer that doesn't know whether to retain a document is best off doing so just in case.
Employers should ordinarily keep the immigration paperwork for the duration of the worker's employment or the duration of the validity of the immigration petition—whichever is longer.
When USCIS approves a visa petition, it provides the petition's validity period on the I-797 Approval Notice that it issues to the employer. For example, let's say Company A sponsors a Russian worker for an O-1 work visa. USCIS approves the petition with a validity period of October 1, 2023 through September 30, 2027. However, the worker leaves the employer on August 1, 2024. The employer must inform USCIS of the early termination, and should retain all of the immigration paperwork (including the communication with USCIS about the termination) through (at least) September 30, 2027.
There are many reasons to retain immigration records. First, USCIS has a special office that investigates immigration fraud. This office sometimes conducts "site visits," where an officer visits the employer and asks to review any immigration petitions. Failure to produce copies of the petitions could result in being hit with employer penalties, a revocation or denial of the petition, or a temporary ban on submitting new petitions. There is always the possibility that USCIS will conduct a site visit, both before and after the foreign worker begins employment.
A second good reason for retaining immigration paperwork is in case the employer eventually wants to apply to USCIS to extend the foreign worker's status.
To apply for the extension, the employer will need to prove that the worker has been maintaining legal status in the United Status. Likely forms of proof include the worker's pay stubs and the I-797 Approval Notice for the previous work visa petition or H-1B visa. The employer has to provide the I-797 Approval Notice if the H-1B worker changed status in the U.S. rather than obtaining an H-1B visa at a U.S. consulate abroad, because this notice confirms that USCIS approved the worker's change to H-1B status. (If the worker has an H-1B visa, the employer should include a copy of the visa.) Without having kept a copy of that petition, the employer could have a hard time proving the worker's legal status.
Another good reason for retaining immigration paperwork is that employers are under an ongoing responsibility to inform USCIS of any material changes to the terms and conditions of the foreign worker's employment. If there is a material change, the employer must file an amended petition with USCIS alerting it. In practice, it is easier for employers to keep track of material changes and prepare amended petitions if they have been maintaining a complete file of the foreign worker's immigration paperwork.
Of course, an employer who files an amended petition should also maintain a copy of it. This is especially important because if USCIS conducts a site visit and discovers the material change, the employer can prove that it informed USCIS of the change by showing a copy of the amended petition.
Employers that hire H-1B workers have additional paperwork responsibilities. For each H-1B worker hired, the employer must create a public access file, which must include:
The employer must keep this public access file at its place of business during the entire duration of the H-1B employment and for one additional year after the employment ends.
Importantly, the employer is under no obligation to keep records of the worker's family's paperwork. It is up to the worker and family to maintain the family's immigration documents.
Note that employers sponsoring workers for green cards (permanent residence) have different responsibilities in regards to retaining immigration paperwork.
]]>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.
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