Employment-Based Immigration FAQ

Form I-9 is the eligibility employment verification form that the government uses to verify that all persons working in the US are authorized to work. This process is administered by the Department of Homeland Security through the USCIS, US Citizenship and Immigration Services. If the new hire does not present acceptable identification by the end of 3 business days after the first day of work for pay, the employee may be terminated for failing to complete the Form I-9. Retain and store Form I-9 for 3 years after the date of hire or for one year after employment is terminated, whichever is later. E-Verify is the electronic online version of the I-9 process.

This is not very common for companies to hire foreign workers without an experienced immigration attorney. The immigration law, regulations, and policies are constantly changing. Many companies have called after they have failed to understand when an application should have been filed or failed to include the correct filing fee due to a recent change. Most companies don’t do their own taxes; likewise, it isn’t recommended that companies handle their own immigration cases. Reach out and get help from an immigration expert.

This is normally done at the time that Form I-9 must be completed by the employee and the employer. The form is completed on the first day of employment. There are many stories of HR managers going through recruitment, finding that perfect person only to find out at the I-9 stage, that the candidate is not authorized to work in the US. It is at the I-9 stage of the hiring process that the candidate must provide evidence that she or he is authorized to work in the US.

No, a special manual is not required. The foreign national must follow the same rules as all other US workers.

Tax forms used for foreign workers are the same as those used by US workers. There may be additional forms to submit also. For example, if you hold money in a foreign bank account, your tax preparer or accountant will guide you on the latest tax documents required.

Avoided pitfalls might include the following:

• filing with the wrong filing fee
• not knowing the correct filing process
• not knowing the correct forms that must be submitted
• not knowing the current law
• failing to use the correct and up-to-date forms
• failing to adapt to the changes at US embassies and consulates
• not understanding what the USCIS is looking for during a green card interview

These are just a few obvious benefits but saving time and building efficiencies into your systems are benefits too.

The employer’s obligations will vary depending on the visa type. Some visas provide specific details on what must be provided, while others are very broad. However, the main obligation of companies is to provide specific and continuous employment to the foreign worker while in the US.

In most cases, not much can be done. However, an immigration attorney can review the resume, the position offered, and the candidate’s immigration status to see if the employee may have other immigration options. If the candidate is outside the US or in some other lawful status, the company can file a petition for work authorization.

One common reason is that there are not enough US workers in STEM occupations. In order to supplement the existing workforce, foreign workers are also needed. In addition, there is a need in the following areas: construction, agriculture, logistics, and landscaping. Anyone willing to or in need of employment can find a job in these areas.

There are work visa categories for just about everything out there you can think of. There are visas for diplomats, athletes, news agencies, executives and many more. However, the four most common visa categories are in H visas, L visas, E-visas and TN visas.

Before the pandemic, it was a challenge for companies to find qualified professionals in the fields such as engineering, manufacturing, and accounting. The pandemic has only increased that need. Over the past year and a half, business demand has remained high, but workers have not been available. Companies that have hired foreign workers in the past are now eager to onboard both domestic and foreign workers.

The main difference in processing is who handles the case. If the employee is in the US, then the USCIS will handle the transfer, extension or amendment. If the candidate is outside the US, then it is the US Embassy through the Department of State who will issue the visa. For some visa categories, such as H-1B, a petition must first be approved by the USCIS before the candidate can obtain a visa abroad.

Here are some common reasons a foreign national would not be authorized to work in the US.

1. The visa category does not allow work authorization. Visa categories like F2, B1, B2 and H4 generally do not allow work authorization in the US.
2. The granted visa or work authorization may have expired. In general, upon the expiration of the foreign national’s I-94 or employment authorization document, they can no longer work. There are, of course, exceptions to this general rule.
3. Valid employment authorization may not have been saved or properly saved in the government safe system. If the granted employment authorization is not saved or properly saved in this system, the candidate may not be able to obtain a social security number which is needed for employment.

The H-1B program is a visa category for professionals whose positions require a minimum of a bachelor’s degree. Accountants, lawyers, engineers, computer systems analysts, doctors and many more qualify under the H-1B category.

The company should first understand the immigration requirements. This means that the company should have a general understanding of the process requirements, such as how long it will take and what actions are required after the immigration benefit is received. Additionally, Human Resources should make sure that the candidate qualifies for the occupation. When the company is organized, the immigration process is more focused, and decisions can be made quickly. Clear, continuous, and effective communication with and stating your expectations to the immigration attorney will get you the results you desire.

Generally, there are four matters where you will be required to seek Department of Labor Certification.

1. Non-immigrant visas, such as the H-1B, H-2A, and H-2B, require certification.
2. There are certification requirements when a company is hiring a foreign worker to permanently work in the United States. A company will need to show that there aren’t enough US workers available.
3. The H-1B visa requires certification prior to filing the petition with the US Citizenship and Immigration Services. This certification ensures that the US employer will pay the prevailing wage to the beneficiary employee.
4. Certification is required in the PERM process. Certification is used to determine what the prevailing wage is and that there are no US workers available for the offered position. This certification is used to obtain a green card.

When hiring foreign workers, the goal is to show the Department of Labor that the employee will be paid a set wage and that US workers are not displaced. The current US system puts US citizens first. Foreign nationals must overcome these barriers to obtain their work visa or green card. A minimum wage or the prevailing wage is a salary set by the Department of Labor, for which the beneficiary employee must be paid at a higher salary. This ensures that employers are not paying foreign workers less than they pay US workers. Finally, the H categories and the Labor Certification PERM process requires some form of recruitment to test the actual job market. These recruitment efforts were implemented to find out if there are US workers readily available in the US job market.