Assisting Employers With Work Authorization Needs

Securing visas for workers is a hugely important task for businesses of all sizes that recruit talent overseas. Visas ensure your people can work for your company and reside in the U.S. while they do the work that keeps your business moving. Obtaining visas, however, is not always simple.

At my firm, Edwin R. Rubin, Attorney at Law, I provide a great deal of insight and guidance to companies – and families – who have legal needs. This includes a host of visa applications for workers and visitors to the United States. Clients across East Brunswick and all of New Jersey turn to me for my reputation in thorough, complete work.

What Kind Of Visa Do You Need?

The list of U.S. visas is extremely long, and the types of visas available to for those visiting or temporarily working in the country can be surprisingly specific. There are allowances for visas for people with the following vocations:

• Skilled workers
• Artists
• Investors
• Athletes
• Clergy-people
• Entertainers
• Reporters

There also are visas available for the families of all these groups and for people who simply wish to visit the U.S. The requirements for each of these visas are variable and highly specific, but I can help you with any of these to get you to the next stage.

Visas For Skilled Workers

Some types of U.S. visas are specifically for skilled workers. These are the visas that your company will most likely be seeking for foreign talent. Among these are:

• H-1B visas: H-1B visas allow employers to bring skilled workers – those who have at least a bachelor’s degree – to the U.S.
• I visas: I visas allow employers to bring members of the foreign media to work in the U.S.
• L visas: L visas are temporary visas designed for managers and executives (and some specialized workers) who will be working temporarily in the U.S.

While these are the most common foreign visas for skilled workers, others exist. Consulting an employment immigration attorney can offer clarity around which visas your workers need.

Extraordinary Ability And The O-Visa

The O-1 visa is a nonimmigrant visa available to those who demonstrate extraordinary ability in their field of expertise. This visa category is designed to facilitate the entry of highly skilled professionals who have achieved national or international recognition for their achievements.

The O-1 visa is an excellent option for those whose talents and accomplishments set them apart from others in their profession. To qualify for the O-1 visa, applicants must provide evidence of their extraordinary ability in science, education, business, athletics or the arts. For example, those working in the motion picture or television industries are also eligible if they demonstrate a record of exceptional achievement. The applicant must meet at least three of the following criteria:

● Receipt of nationally or internationally recognized awards or prizes in their field.
● Membership in associations requiring outstanding achievements as a condition for membership.
● Published material about the applicant’s work in professional or major trade publications.
● Evidence of participation as a judge of others’ work in the same or a related field.
● Original contributions of major significance in their area of expertise.
● Authorship of scholarly articles in professional journals or other media.
● Employment in a critical capacity for organizations with a distinguished reputation.
● Commanding a high salary or remuneration indicative of exceptional ability.

The O-1 visa provides several advantages, including the ability to work in the United States for an employer or organization related to the applicant’s field. It also permits dependents, such as spouses and children under 21, to accompany the visa holder under the O-3 category. While dependents cannot work, they can attend school during their stay.

The O-1 visa requires sponsorship by a U.S. employer, agent or organization. The sponsoring entity must file a petition with the U.S. Citizenship and Immigration Services (USCIS) and provide supporting evidence of the applicant’s extraordinary ability.

The visa is granted for the specific project, event or employment, with an initial period of up to three years and extensions available in one-year increments.

The O-1 visa is a pathway for talented individuals – the “best of the best” – to contribute their exceptional skills to the U.S. while furthering their careers on an international stage.

Outstanding Researchers And Professors

One category to consider for those working in academia is that for outstanding professors and researchers. Companies and educational institutions often use these nonimmigrant visas so that they can bring on key personnel to help with long-term growth. At the same time, many professors and researchers want to teach in the United States or continue their studies.

As with other jobs, educational institutions will sometimes petition to have professors or researchers brought to the United States on these specific visas. Employers that qualify include:

● Colleges or universities that are looking to bring on a tenured professor in a specific academic field.
● Colleges or universities looking for permanent researchers.
● Specific departments or divisions focusing on permanent academic research, even when the company is a private employer.

In this last category, the employer will need to show that they have academic accomplishments and that they already employ at least three other individuals in full-time positions doing research and other academic pursuits. This is not just standard employment, and the company has to have a deliberate focus on that academic field.

Another important thing to note is that the position being offered needs to be permanent. This is why universities are often looking for tenured professors, rather than short-term professors who may be given a one- or two-year contract. Companies may be offering employment for an unlimited duration, so that it is expected to continue as long as there aren’t any issues after the employee arrives. For both sides, the focus is on permanent employment.

There are some qualifications that the researcher or professor needs to have, showing that they are outstanding in their field. Examples include:

● Major awards or prizes
● Membership in academic associations
● Published writings and other materials
● Work on a judgmental panel evaluating other researchers’ work
● Original scholarly or scientific contributions
● Published books or articles

Furthermore, the professor or researcher needs to have significant experience spanning at least three years, during which they have published the aforementioned works, won awards or received other recognition that sets them apart from their peers.

Factors To Consider When Hiring Foreign Workers

Foreign workers can provide significant value to U.S. employers. However, it is important for your business to keep these factors in mind before hiring or sponsoring them:

1. Professional background: Any worker you hire or sponsor must have the experience, qualifications and skills to succeed in their job. If the position requires a specific degree or certificate, you must verify they have these as well.
2. Personal background: For a foreign worker to succeed in the U.S., they must be a good cultural fit. Ensuring a candidate’s background and working style mesh with the values and culture of your company is vital.
3. English proficiency: Language barriers can make communication and teamwork difficult. Prioritizing candidates who speak English fluently is in the best interest of your business.
4. Legal requirements: Employers must take certain steps when obtaining visas for employees. Staying in compliance with these regulations and procedures is critical, and an employment immigration lawyer can help you understand the rules you must follow in your situation.
5. Expenses: Your business must consider the expenses involved in hiring foreign workers, including legal fees, relocation costs and training costs, before bringing them to the U.S.

If you have questions or concerns about any of these factors, seek the guidance of an employment based immigration lawyer.

Understanding The National Interest Waiver

For many people looking to immigrate to the U.S., the process of acquiring a work visa can be tedious and time-consuming. Many companies do not offer work visa opportunities because they are either unable to get the approval to hire foreign workers or unwilling to sponsor foreign workers. This can put a lot of immigrant families into precarious situations. Yet, a work visa is not the only opportunity for families to enter the U.S.

This is where the National Interest Waiver (NIW) can help. The NIW allows certain foreign nationals to apply for a green card (permanent residency) without needing a job offer or labor certification from a U.S. employer. This waiver is primarily available under the EB-2 category and generally covers immigrants with extensive professional skills and knowledge in science, arts, business and some other professions.

To qualify for the NIW based on an advanced degree, a person typically must have both a baccalaureate or foreign equivalent degree and five years of progressive work experience in the specialty. In addition, the applicant’s work or skillset must be of “substantial merit and national importance,” that will benefit the United States in some way that outweighs the typical requirements for labor certification.

The NIW has helped many people seek lawful permanent residence in the U.S., but applications need to be prepared for the challenges of the application process. Well-prepared applications must include documentation of professional degrees, testimonials about the applicant’s skills, publications and professional awards.

People looking to apply for the NIW can reach out to an experienced immigration lawyer to help them through the application process. I can help collect and review your credentials, complete the NIW application and improve your chances of obtaining your EB-2 visa. We can explore and strategize your legal options today.

Obtaining Necessary Labor Certification

In many cases, immigrants wishing to work in the United States need to have the correct labor certification. Their employment has to be authorized by the Department of Labor. The employer is heavily involved in this process, and it is now carried out through the PERM (Program Electronic Review Management) system. Immigrants need to know how to navigate this system and ensure that they get the correct certification so that their employment status – and, by extension, their immigration status – is not in jeopardy.

Much of this process revolves around ensuring that employers first check to see if there are U.S. workers available to take that job. Employers must make a good-faith effort to recruit domestically before turning to immigration options.

Recruitment efforts could include placing a job order, running job ads or postings in Sunday newspapers, and the like. Other types of recruitment that may satisfy this requirement include posting the job on the employer’s website, attending job fairs, doing on-campus recruiting, using recruitment websites, contacting trade organizations or running radio and TV ads.

How Long Does The Process Take?

When these steps have been satisfied, the Department of Labor may approve the application for an immigrant to take the job. This usually takes around 60 days. But there are cases in which an audit may be required, which can extend the process. The government does not guarantee that it will meet any specific deadline. This is why it’s so important to know exactly what steps to take while moving through this process.

What Are The Employer’s Obligations?

In addition to the job posting requirements noted above, the employer is obligated to ensure that the application is fully correct and true to the best of their knowledge. They also need to have all of the necessary documentation to support their hiring decision. They need to be able to prove that they conducted the aforementioned recruitment efforts, for example, and have tried to hire a U.S. worker. In some cases, employers may have to demonstrate why some of the U.S. applicants were rejected, such as if they lacked the appropriate skill, training or industry knowledge.

The Visa Process

At times, it can feel like the visa and immigration process in the U.S. is intentionally filled with red tape and complexity. Once you’ve completed your application packet, you may have to have follow-up interviews or even hearings.

When you work with me, in every interaction with the U.S. Customs and Immigration Service (USCIS), I will be with you. I will answer your questions and defend your application and your needs against the difficulties. I will be your advocate and take the necessary steps to give you every opportunity for a successful outcome.

Meet With A Work Immigration Attorney To Discuss Your Visa Needs

Whether you are a company seeking to expand your workforce or a current worker seeking to bring your family to you, I can help. Call my office at 973-685-6056 or send an email to schedule your first meeting.

When we talk, I will discuss all your options and several strategies for moving forward. I’m ready to get to work for you.