Employment Based Visas and Green Cards

U.S. Business Immigration Is Complex

The labor market is tight in many sectors, and American companies are eager to find the right talent to meet their hiring needs. Sometimes the best answer is to supplement the U.S. workforce with highly skilled foreign workers who value freedom and are eager to realize the American dream.

Sponsoring foreign workers through the U.S. business immigration system can appear daunting. U.S. companies wanting to legally sponsor key foreign workers must navigate a complex matrix of U.S. immigration laws and procedures. Given these many challenges, some U.S. employers completely opt out of the process.

At Siri & Glimstad, we work with American businesses to demystify the immigration process so they can maximize the opportunity for success. Our immigration team looks forward to working with you!

Two Types of Employment Based Visas

There are two types of employment based immigratnt visas: temporary visas and permanent visas.

Temporary Visas

Companies sponsor foreign workers for limited periods of time on temporary visas. The best-known and widely used temporary business-based visa is the H-1B visa for professional level workers. The H-1B visa is available for persons in professional level jobs such as engineers, software developers, accountants, marketing specialists, chemists, doctors, professors, financial analysts and so forth.

The H-1B visa can be valid for up to 3 years at a time, and for a grand total of 6 years with all employers combined. There are several components to the H-1B process including a requirement that the U.S. employer pay at or above the prevailing wage for the job offered in the job location.

Base government filing fees for an H-1B petition can be several thousand dollars, plus a similar amount for legal fees. It is much easier to file a transfer H-1B visa petition for a foreign worker who already has H-1B status rather than to try to obtain an initial H-1B visa through the annual H-1B cap visa lottery. Government processing times can vary from around 2 weeks for cases filed with expedited premium processing (requires an additional filing fee) to several months or more for standard processing cases.

Other commonly used temporary business visas include L-1 visas for intra-company transfers, TN visas for Canadian and Mexican professionals, and O-1 visas for persons of extraordinary ability in business, science or the arts.

Permanent Visas

The process for a U.S. business to sponsor a foreign worker for a permanent visa (also known as a green card) involves several steps. Most foreign workers going through the green card process must first obtain PERM labor certification, which requires the U.S. employer to undertake a labor market recruitment test to see if there are any qualified U.S. workers.

The second step in the process is to get an approved I-140 petition in the EB-2 or EB-3 category. A smaller percentage of foreign workers will be eligible to bypass the PERM labor certification phase and file an I-140 petition in the EB-1 category as a multinational manager, a person of extraordinary ability, or an outstanding researcher/professor.

All foreign workers seeking to obtain a green card must submit an I-485 application to adjust status to that of a permanent resident as the final step in the process. The overall green card process can take 12-24+ months and cost $10,000-$20,000 for filing fees and legal fees combined. As with temporary visas, government agencies can issue requests for evidence or outright denials on permanent visa applications. It is possible to appeal most denials, but doing so adds considerable time and expense, and a case approval is not certain.

Know The Government Agencies

The involvement of numerous U.S. government agencies in various aspects of the immigration process creates confusion for employers. Knowing the primary government agency “players” can eliminate some of the stress in the immigration process.

• U.S. Citizenship & Immigration Services (CIS) adjudicates most employment-based temporary and permanent visa petitions
• The Department of Labor (DOL) is involved in the H-1B temporary visa process through certification of the underlying Labor Condition Application (LCA) and in the PERM labor certification process for green card applications
• The Department of State (DOS) has jurisdiction over U.S. Consulates abroad, which issue visa stamps in the passports for travel
• U.S. Customs & Border Protection (CBP) admits foreign workers into the country at the port of entry
  Immigration & Customs Enforcement (ICE) initiates I-9 audits and reviews company records
• The Department of Justice (DOJ) conducts investigations if a complainant alleges immigration-related or national origin discrimination