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How to Get Permission for a Non-Citizen to Stay and Work for You in the U.S.

new-york-law-journalYou’ve found the right person for your job opening, but you suspect there’s going to be one little catch: She’s not a U.S. citizen. In fact, you’re pretty sure she doesn’t have a green card or any other kind of legal status in the United States that would allow her to work for you. Is there any way to hire this person?

The short answer is maybe, and it won’t be easy. But with enough advance planning, it is possible for you as the employer to obtain for certain workers the right to live and work in the United States, either temporarily or permanently.

Before You Begin

Before you spend time and money sponsoring your worker, be certain there are no other ways in which she can obtain work authorization. Certain immigration statuses carry with them an automatic right to work for anyone, anywhere in the country. Permanent residence (a “green card”) is one of those; you might want to explore with your prospective employee whether she has any way (other than through you as an employer) to get a green card. Typically, this would involve marriage to a U.S. citizen or some other close family relationship to a U.S. citizen. Keep in mind that refugees, people granted asylum and people granted Temporary Protected Status are work authorized, as long as they have obtained an employment authorization card.

If there are no other options, it will fall to you to sponsor your intended employee. Sponsoring means filing a petition with U.S. Citizenship and Immigration Services (USCIS) to classify your intended employee as someone who is potentially eligible for legal status in one of the various categories of workers recognized under the immigration law. It can take many months for USCIS to approve your petition, unless you pay a significant extra fee for a quick decision. Moreover, your petition is not the only step in the process. Your worker has to meet the legal requirements for changing her status in the United States, or else leave the country and obtain a work visa to come back. If you’re trying to get your worker a job-based green card or authorization for certain temporary work, you may face an additional hurdle: proving you’re not harming the job prospects of U.S. workers.

 

Classifying Your Employee

Let’s look at the various steps in the process in a little more detail. To start, you must determine your needs and your intended employee’s immigration goals. Broadly speaking, the possibilities are permanent residence in the United States for your employee or temporary residence, either short-term or long-term. In all cases, you must identify a category of workers in which your intended employee would fit. Each category has rules for who qualifies—some simple, some complex.

The main employment-based permanent resident categories are called EB-2 and EB-3. EB-2 is for professionals holding an advanced degree or its equivalent, or persons who have “exceptional ability” in the sciences, arts or business. EB-3 is a broad category that encompasses any kind of worker. You would want to have your worker classified as EB-2, rather than EB-3, because permanent residence may be quicker in the EB-2 category. There is also the EB-4 category used by religious organizations to hire religious workers.

The long-term temporary employment categories will not give your intended employee permanent residence. However, because of the time it takes to be approved for permanent residence, sponsoring your intended employee in a long-term temporary category is often necessary in order to keep your employee in the United States while an application for permanent residence is pending. The main long-term temporary categories are H-1B and L.

H-1B is for workers in “specialty occupations,” which are generally those that require a college degree. L is used by U.S. employers who are part of multinational organizations as a way of bringing executives, managers and employees with “specialized knowledge” to this country to work for the U.S. side of the company. H-1B is limited to six years at a time, with extensions possible for persons in the middle of their green card process. L is limited to seven years (executives or managers), five years (specialized knowledge workers) or one year (employee in a new office in the United States).

If your intended employee is from Canada or Mexico, you may be able to use the TN category. TN is for certain types of work only, mainly professional occupations. Your employee could potentially stay in the U.S. forever in a TN job, but will have problems retaining TN status if she decides to apply for permanent residence.

A category similar to H-1B, known as E-3, is for Australians only.

Other possibilities for longer-term work authorization are the O, P and R categories. O is hard to qualify for; it’s reserved for persons with “extraordinary ability” in the sciences, arts, education, business or athletics. It lasts for only as long as the work requires, but there is no maximum number of years. P is for professional athletes, artists and entertainers. R is for religious workers and is limited to five years.

If you need workers for just a short time or part of the year, the main categories are H-2A (for agricultural workers only) and H-2B (for all others).

Getting Clearance

There are certain employment-based immigration categories that require you as the employer to obtain the U.S. Department of Labor’s permission before your worker can be classified as eligible for the requested status. These include the major employment-based permanent resident categories (EB-2 and EB-3), the H-1B specialty worker category, the H-2A category for agricultural workers and the H-2B category for other seasonal workers. You are expected, and in some cases required, to bear the cost (including attorney fees) of obtaining the Department of Labor’s approval to proceed.

Most EB-2 and EB-3 jobs require you to obtain “labor certification” from the Department of Labor. To get it, you need to be able to prove that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment, and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. You also have to offer the job at the prevailing wage or higher. The Department of Labor will require you to advertise the job, accept resumes and interview candidates. You won’t have to hire a U.S. worker if a qualified one applies. Rather, you have to go through the recruiting process in the hopes you won’t find any U.S. worker who can do the job, so you can hire the foreign worker you want. The process of advertising the job and obtaining labor certification can take nine months to a year, or longer if the Department of Labor decides to audit you to see if you complied with all the steps.

Before you can petition to hire an H-1B worker, you have to make a “labor condition application” to the Department of Labor. You don’t have to go through the recruiting process, but you do have to pay your worker at least the prevailing wage, not adversely affect the working conditions of workers similarly employed, let your other workers and the relevant union (if any) know that you intend to hire a foreign worker and attest that you’re not trying to break a strike by hiring a foreign worker.

H-2A jobs require advertising of the job by submission of a “job order” to a state workforce agency, and possibly additional recruitment if there is a large local labor supply. H-2B jobs require a job order and other advertisement of the job opening, paying at the prevailing wage. Both require approval of an application for temporary employment certification from the Department of Labor.

Filing the Petition

When you have obtained the necessary permission from the Department of Labor, or if such permission is not necessary, you can proceed to the next step in the process: filing a petition to prove that your intended employee is eligible for a change of immigration status or a visa in the category you chose. The petition is filed with USCIS on a designated form, along with a filing fee and documentary evidence proving your intended employee’s qualifications. (If your intended employee is coming from Canada, a petition may not be necessary.)

If your intended employee is in the United States and wants to change to a temporary work status, your petition will instruct USCIS to change the intended employee’s status upon approval of the petition. If your intended employee is outside the country or wants to leave the country to pick up a visa, you tell USCIS to notify a U.S. embassy or consulate upon approval so that your intended employee can apply for a temporary work visa overseas.

The process is a little different when you are sponsoring someone for permanent residence. If your intended employee is in the United States and is eligible to adjust his or her status to permanent resident, you can’t just ask USCIS to adjust your intended employee’s status upon approval of your petition. Your employee will have to apply for permanent residence with a separate application form and fee. Sometimes, you can send both your petition and the application for permanent residence together. Usually it depends on whether your intended employee is eligible to adjust status in the United States. There are lots of rules surrounding who is eligible to adjust status.

The number of people from a particular country who can get permanent residence in a particular work category each year is limited, and there may be a wait list. If your intended employee is on a wait list, he or she cannot adjust status or get a visa until their turn comes. This waiting period may ruin your plans of hiring your intended employee, but there is no way around it.

If you don’t have any problem with your intended employee’s ability to change or adjust status, you still have to consider how long it might take USCIS to make a decision on your petition. It can be many months, unless you pay a significant extra fee for a quick decision (called “premium processing”). Although premium processing is generally available for employment-based applications, it may not be available for some applications at certain times.

If Your Petition Is Approved

Assuming your intended employee is in the United States already and is eligible to change to a temporary work status, USCIS’s approval of your petition will change your intended employee’s status, and he or she will be able to start working for you right away. If your intended employee is not eligible to change or adjust status, or is outside the country or otherwise would prefer to leave the country to get a visa, you will have to wait for a visa to be approved. This will mean a delay of several weeks, if not months, and adds a level of uncertainty due to all the requirements surrounding entry into the United States.

If Your Petition Is Not Approved

A denial of your petition is going to prevent you from hiring your intended employee. If you really want the person to work for you, you can either try again by filing another petition, or you can appeal the denial. It could take a long time for you to receive a decision on the appeal, however—in some cases, years.

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