Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

11 Broadway, Suite 615
New York, NY 10004

(212) 430-6582 phone
(212) 430-6583 facsimile

Employer Overview

If you're reading this, we assume that you are considering hiring a foreign national and that want to comply with US immigration law. We're also assuming that this is all new to you, and that you are trying to get a handle on what's involved.

Here we address the most common general questions and concerns of employers and managers. To the extent possible, we discuss time frames, costs, and legal obligations. Go back to our Info Center for Employers, Human Resources Professionals and Managers home page for links to more context-specific FAQs for employers, or to our main Basic Immigration Overview for links to the specific non-immigrant visa types and permanent residence processes..

Q: I want to hire a foreign national to work for me - how soon can I have the person on board?

A: The range will be from two weeks to four months, although there are situations which can make the maximum time to bring someone on board far longer. Unless the person already has unrestricted authorization to work in the US, in which case the person can begin work immediately, employer sponsorship will be required. An employer may sponsor for a non-immigrant (temporary) visa which permits employment or for an immigrant visa (permanent residence or a "green card").

A non-immigrant visa will almost always be faster and more cost effective, but how much faster and how much less expensive depends on which type of non-immigrant visa is appropriate to the job and the person's background, the person's nationality/citizenship, and the geographic location where the person will be working. A person does NOT necessarily need to have a "green card" - permanent residence - or U.S. Citizenship in order for you to legally be able to hire them.

Q: What circumstances will let me bring someone on board within a matter of weeks?

A: Not many. There are a few situations where a foreign national you wish to employ can just present a petition at a consulate or port of entry and be approved for entry, without having to obtain prior approval from U.S. Citizenship and Immigration Services. This means a person could enter in some cases in as much time as it takes to prepare and send them the petition - perhaps as little as a week and a half.

These situations are very limited though, and will generally apply only to Canadian, Mexican or Australian nationals, or to certain intracompany transferees (people transferring from an overseas affiliate/parent/subsidiary of your company to the US entity).

While an H-1B petition - as discussed below - will normally take substantially longer, an exception exists where an individual who is already on an H-1B and who is simply switching employers can start with the new employer almost instantly - as soon as the petition to amend the H-1B to reflect the change is FILED, rather than when approved.

Q: Since this shorter track usually won't apply, what is a more typical time frame for bringing a new foreign national worker on board and what is involved?

A: Most of the time, a petition will first need to be filed with U.S. Citizenship and Immigration Services ("USCIS"). Most non-immigrant work visas take two to five months for approval - this depends on which of the USCIS Regional Service Centers handles the geographic location where the job is based and the current backlog at that facility (H-1B visas can often take far longer simply due to limitations on availability).

However, USCIS has a procedure called "Premium Processing" - basically a $1,225 fee for expedited processing - which is applicable to most non-immigrant visas which permit employment. If you pay the fee, you are promised a response within 15 days of USCIS receipt of the case.

The response can be an approval, a request for further information, or a denial (though they will rarely deny without first requesting further information or clarifications). USCIS has another 15 days to respond with a decision under Premium Processing once they receive a response to an inquiry.

Q: Once the non-immigrant visa petition is approved by USCIS, is anything else required that would add more time to the process?

A: If the foreign national has already been in the U.S. in another valid non-immigrant visa status (i.e.: F-1 student, H-1B for another employer), the person can simply change status to the non-immigrant visa allowing employment or amend the current employment non-immigrant visa. The foreign national can then begin work as soon as USCIS approves the petition with no further action. So, the time frame stays at two to five months.

However, if not in the U.S. on another valid status, and regardless of whether the Petition was filed through "regular" processing or Premium Processing, the foreign national will need to take the approval for the non-immigrant visa and apply for a visa stamp at a U.S. embassy or consulate prior to entry (Canadians don't need visa stamps, but would still need to enter from outside the U.S.)

This process would in the past have been completed in a time frame from same-day up to two weeks from the date of application. In the post-9/11 world, additional security checks can in some cases add anywhere from two weeks to two months to this part of the process. The range therefore goes up to from two and a half months to seven months in this situation overall.

There may be other issues with certain potential employees leaving the U.S. - especially if they have been in the U.S. but have not maintained valid status. We would address these issues with you before beginning to process the case.

Q: What about the foreign national employee's family?

A: In most cases, "Derivative" non-immigrant visas will be available so that the foreign national employee's immediate family (spouse and children under 21 years of age) may accompany the worker to the U.S. and remain here with them.

Q: How do I know if a person already has unrestricted authorization to work in the US? What am I allowed to ask?

A: When completing the application and interview process, you as an employer are "safe" in asking only two questions:

    "Are you authorized to accept employment in the United States?" and:

    "Will you now or in the future require sponsorship in order to be able to accept employment in the United States?"

While you may see other formulations of these questions, and some of these may be acceptable to the government, the language above has been specifically acknowledged to be acceptable (i.e.: not violative of any equal opportunity/discrimination provisions).

A person who [correctly] answers "yes" to the first question has unrestricted authorization to work in the U.S. and can begin employment immediately. A person who answers "yes" to the second question has unrestricted authorization to work in the U.S. for a limited period of time, and will eventually require your sponsorship as an employer to continue working.

Q: Does having unrestricted authorization to work mean that the person will always have the ability to work, and thus we will never have to take the person off payroll?

A: No. There are many ways a person could have the temporary ability to work. One of the most common you will see concerns foreign nationals here on student visas, who are eligible for one year of unrestricted employment authorization after graduation from their program. These recent graduates will require you to sponsor them for a visa which authorizes employment at the end of the one year of unrestricted employment authorization (up to three years for certain students with STEM degrees)..

Q: If the person doesn't have evidence of unrestricted authorization to work in the U.S. but I still want to hire them, what's the next step?

A: At this point, you should contact an immigration attorney to determine the most appropriate non-immigrant employment visa, what will be needed to apply for it, the time frame involved, and the cost. You may also want to negotiate with the prospective employee over such concerns as:

  • Who will be responsible for legal fees and other costs of immigration work (filing fees, expenses, etc. - but understand that in some cases, the employer may be legally required to pay or the issue of who pays may impact substantive aspects of the case)
  • Whether or not you would eventually consider sponsoring the foreign national prospective employee for permanent residence; and
  • If you agree to consider sponsorship for permanent residence, whether there will there be a probationary period involved first.

Q: Why would I want to sponsor an employee for permanent residence?

A: Remember that non-immigrant visas, though quicker and easier to obtain, are generally temporary in nature. One of the most commonly used non-immigrant visas, the H-1B Specialty Occupation visa, allows a maximum of six years of physical presence in the U.S. and employment authorization. If you want to keep the foreign national employed with your organization beyond that period, they will need either some other type of employment-permitting non-immigrant visa or permanent residence.

Most foreign national employees will eventually want to obtain permanent residence - sponsorship is something which an employer may offer as a benefit to a desired employee or as a retention tool for valued employees. Please see our Employer's Permanent Residence Overview for more information.

Contact us here to arrange a consultation, to inquire about retaining us to handle your immigration matter, or simply to suggest topics you would like to see covered on our site.

The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.