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When it comes to hiring for your small business, you want to seek out the best applicants possible. Sometimes, those applicants are not US citizens.
According to data from the State Department, there were over 9 million visas issued in 2018. That means there is a healthy pool of talent living and working in the United States. But in order to hire them, you need to sponsor their visa.
In this guide, we’re going to show you how to sponsor a foreign worker so that you can gain a hard-working and loyal employee, and the employee can stay in the country for the duration of their visa.
As an employer, if you want to sponsor a foreign national, you and the foreign national need to go through a multi-step process. While it may seem complex at first, we’re going to break it down into digestible parts.
To begin the process of sponsoring a foreign national, you must obtain an approved Application for Permanent Labor Certification from the US Department of Labor (also known as a PERM Labor Certification). This document provides an employer with the ability to hire a foreign worker to work permanently in the United States.
The PERM is also a way for the Department of Labor (DOL) to be sure that your foreign worker is not taking a job away from a qualified U.S. worker. To meet their expectations, you need to spend about two months running job ads with the intention of recruiting a qualified candidate.
For instructions on how to complete this form, visit the DOL website.
Once the certification has been approved by the DOL, the employer must file Form 1-140, Immigrant Petition for Alien Worker with the US Citizenship and Immigration Services (USCIS). For instructions on how to file the document, visit the USCIS website.
Filing a petition shows that you have the intent to hire the employee upon the approval of the petition.
Part of filing Form 1-140 is selecting the type of visa sponsorship. H-1B refers to all employment-based (EB) visas, but there are actually a variety of different application types.
In order to sponsor a foreign worker, they must qualify for one or more of the employment-based (EB) immigrant visa categories provided by the USCIS. There are four different EB visa categories, each organized by occupational priority as mandated by Congress. Let’s take a look at all four:
The State Department defines priority workers as:
The criteria for an EB-2 visa include:
To qualify for an EB-3 visa, foreign nationals must be:
According to the USCIS, Special Immigrants are:
Once you file Form 1-140, the employee enters a line with others waiting to immigrate based on the same kind of EB visa category. The foreign national’s place in line, known as a “priority date,” will be based on the date your petition is filed with USCIS. When the foreign national employee reaches the head of the line, they will apply to immigrate to the United States.
Once Form 1-140 is approved by the USCIS, it is sent along to the National Visa Center (NVC). When an applicant’s priority date meets the most recent qualifying date, the NVC will require the applicant to complete Form DS-261, which tells the State Department how to communicate with the applicant during the application process.
The applicant will then have to submit the necessary fees and paperwork, including a valid passport, Form DS-260 (Immigrant Visa and Alien Registration Application), two 2×2 photographs, completed medical examination forms, and civil documents, such as the applicant’s birth certificate, marriage certificate, and court and prison records.
Once the NVC determines the application is complete with all the required documents, they will schedule an interview appointment at an appropriate US Embassy or Consulate. A consular officer will interview the applicant, and the consular officer will determine whether the applicant is eligible to receive an immigrant visa in accordance with U.S. immigration law
The amount of time it can take to gain sponsorship for a foreign worker can vary greatly. According to the State Department, “employment based immigrant visa cases take additional time because they are in numerically limited visa categories. The length of time varies from case to case and cannot be predicted for individual cases with any accuracy.”
There are also laws on how many people can immigrate each ear under each visa category from a particular country. Therefore, the USCIS says that “for some foreign nationals there may be no waiting period, while others may have a significant waiting period.”
Of course, sponsoring a foreign worker also comes with fees. For the employer, they must pay a base filing fee of $460. There is also a fee required to be paid by all employers sponsoring a foreign worker under the American Competitiveness and Workforce Improvement Act. This fee ranges from $750 for employers with 25 or less full-time staff to $1,500 for companies with more than 25 full-time staff.
Other fees include an anti-fraud fee of $500. If a company has upwards of 50 employees with over half on H-1B visas, there is an additional $4,000 fee under Public Law 114-113. Note that if you choose to work with an immigration lawyer throughout this process, you should also budget for additional lawyer fees.
If you want to expedite the foreign national’s visa application, you or the employee can pay a premium processing fee, which guarantees a 15-day processing time frame. In order to obtain premium processing, you must complete form I-907 and pay a $1,440 fee.
Overall, small employers should budget about $1,500 to $3,000 for sponsoring a foreign worker.
The applicant must pay fees for the following services:
Now that you know how to sponsor a foreign worker, you should know about mistakes employers often make throughout this process. If you are in the process of or thinking about sponsoring a foreign worker, here’s a list of mistakes you should avoid:
As mentioned, one of the first steps to most employment-based green cards is the PERM Labor Certification.
When starting the PERM process, first find out how much you need to pay your foreign worker. The National Prevailing Wage Center handles this part. They take the job title and description and compare it to other similar jobs in your geographical area to determine the prevailing wage that your worker needs to be paid.
Here’s where employers drop the ball.
The common mistake is to either ignore the prevailing wage or to avoid advertising the wage when you post ads for the job. This is a surefire way to have your PERM denied, costing you weeks of work. To avoid this, make sure that the wage is clearly displayed and that you fully intend to pay your worker at least that much for their services.
This is where some business owners try to be sneaky.
Obviously, if the goal is to hire the foreign worker, then running a job campaign would be counterintuitive, right? So, wouldn’t it be best to delete résumés, ignore leads, and reject qualified candidates so that the foreign worker wouldn’t have any competition?
Well, that’s a bad idea. The DOL will see right through this and issue an audit for your case—if they don’t deny it outright. Sometimes, they might even have you redo your recruitment process under their direct supervision, which adds to the amount of time it takes.
The best way to avoid this mistake is to be honest in your recruitment report. However, this doesn’t mean that you have to throw your foreign worker under the bus and hire the first U.S. candidate you meet. Rather than fudge the numbers, make an effort to explain to the DOL why each candidate was not qualified for the position.
Small business owners are busy and some things end up getting swept under the rug for a while.
But it’s important that you don’t let this happen to your PERM. If you do manage to get one approved, you will have 180 days or six months to act on it and take the next step in the sponsoring process.
If you let this time pass without filing the green card petition (1-140), your PERM expires and you will have to go through the recruitment process all over again.
Obviously, you can avoid this error by moving forward and filing the green card petition as soon as possible. This ensures that you take full advantage of the time and effort you’ve invested in your foreign worker.
This one may seem self-explanatory, but you might be surprised at how easy it is to make a mistake when sending off the fees and documents at the end of the long process of immigration.
The USCIS has hundreds of forms in their archives, each one requiring a different fee. It’s always important to take some time and read up on which forms are necessary, which ones have fees, how much those fees currently are, where to mail them, and how the payments should be made.
When trying to hire a foreign worker, too many business owners think they can become an overnight expert in immigration law. If you do this, you’re risking all of your time and money on the hope that you’ve made the right choices.
On the other hand, you can place the entire case in the capable hands of an immigration attorney, and avoid every mistake we’ve mentioned. Almost all cases that receive audits, supervisions, and rejections are made by people who tried to sponsor an employee by themselves.
In the end, the main mistakes that business owners make when sponsoring a foreign worker are not paying attention to details, engaging in shady business practices, and trying to do everything alone. If you avoid these common errors, you may find that sponsoring foreign workers is the key to success in your industry.