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Sponsored immigration

New hires

What sponsored visas or work permits are available to employers seeking to hire foreign nationals in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

Common long-term work options for new hires

 

Eligibility requirements

Payroll/salary requirements

Maximum authorised stay

Processing times

E-3

  • Applicants must:
  • be an Australian national;
  • have a legitimate offer of employment in the United States;
  • possess the necessary academic or other qualifying credentials; and
  • be filing for a position that qualifies as a specialty occupation.
  • Documentation from the employer establishing that the employee will be engaged in a specialty occupation and will be paid the higher of the actual or prevailing wage.
  • Two years initially, which can be extended for a further two years an indefinite number of times, with some exceptions.
  • One week for labour condition applications (LCAs) to be certified. Approximately six months for processing.
  • If the employee is outside the Unites States, he or she must apply for a visa to enter the country.
  • May apply directly at a US embassy without having to first file with US Citizenship and Immigration Services (USCIS).

H-1B

  • Applicants must have at least a bachelor’s degree in a relevant field or equivalent experience and be filing for a position that requires a degree.
  • At least the prevailing wage for occupation in the area of intended employment.
  • Six years.
  • One week for LCAs to be certified. Approximately six months or more for processing. Premium processing is available (15 days).
  • If the employee is outside the United States, he or she must apply for a visa to enter the country.

H-1B1

  • Applicants must:
  • be a Chilean or Singaporean citizen; and
  • have at least a bachelor’s degree in a relevant field or equivalent experience and be filing for a position that requires a degree.
  • At least the prevailing wage for occupation in the area of intended employment.
  • One year, but this can be extended annually.
  • One week for LCA to be certified. Approximately six months for processing.
  • If the employee is outside the United States, he or she must apply for a visa to enter the country.
  • May apply directly at a US embassy without have to file with USCIS first.

TN

  • Applicants must:
  • be a Canadian or Mexican citizen; and
  • be engaged in professional activities and in a position on the TN Visa Eligible Professions List.
  • N/A
  • Three years, which is extendable by three year increments.
  • Approximately six months for processing. Premium processing is available (15 days).
  • May be filed directly at a US embassy or at the Canadian border (for Canadian citizens) without having to file with USCIS first.

Intra-company transfers

What sponsored visas or work permits are available to multinational employers seeking to transfer foreign employees to your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

Intra-company transfers may be eligible for one of two L-1 visa classifications.

 Intra-company transferee

Eligibility requirements

Payroll/salary requirements

Maximum authorised stay

Processing times

L1-A intra-company transferee, executive or manager capacity

  • Applicants must:
  • be employed by a company with a qualifying corporate relationship between the United States and a foreign office;
  • have been working for the qualifying organisation abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
  • be seeking to enter the country to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organisations.
  • Sufficient to show managerial position.
  • Initial stay of three years. Requests for an extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years.
  • Approximately six months for processing. Premium processing is available (15 days).
  • Once approved, individuals must apply for a visa abroad at a US embassy.
  • If the employer has an approved L-1 blanket, the employee can apply directly at a US embassy without having to file with USCIS first.

L1-B intra-company transferee, specialised knowledge professional

 

  • Same as above, but employee must be seeking to enter the United States to provide services in a specialised knowledge capacity to a branch of the same employer or one of its qualifying organisations.
  • Sufficient to show specialised knowledge.
  • Initial stay of three years. Requests for an extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of five years.
  • Same as above.

Do any special rules govern secondments?

All foreign workers must follow the same US immigration rules and obtain work-authorised non-immigrant status. US employers must ensure they are not employing, referring or contracting illegal workers.

Sponsor requirements and considerations

What are the eligibility and procedural requirements for employers to sponsor foreign employees?

Sponsoring employers must have a Federal Employer Identification Number in order to sponsor foreign nationals. In some cases, evidence of doing business may be required.

What ongoing reporting and record-keeping requirements apply to sponsors?

All employers must verify the identity and employment authorisation of each person hired through the completion of a Form I-9. Section 1 of the Form I-9 must be completed by the employee on or before the first day of employment and the employee must present valid employment authorisation documents to the employer within three days for completion of the form.

Employers sponsoring H-1B, H-1B1 and E-3 workers should also promptly withdraw an employee’s petition and LCA when that employee ceases employment with the employer. Employers must maintain an LCA and related public access file for every H-1B, H-1B1 and E-3 worker. The public access file must be retained for at least one year after the LCA expires or is withdrawn.

Employers are encouraged to conduct internal compliance checks to ensure that employees’ employment and compensation remains consistent with statements made on visa petitions, as government officials have increased scrutiny and inspections of worksites for potential violations of labour and immigration regulations covering H-1B, L-1 and other non-immigrant categories. At present, there are no employer obligations to report foreign national employees to the government.

In what circumstances (if any) must the employer submit to resident labour market testing before hiring or transferring foreign employees? Do any exemptions apply?

Labour market testing is required for immigrant work visas under employment-based preference categories (EB-2 and EB3) where a Programme Electronic Review Management (PERM) labour certification application is required. Those who qualify under the EB-1 category (multinational executives and managers, outstanding researchers and individuals with an extraordinary ability) do not require a PERM application.

A PERM application is the first step in the permanent residence process. The PERM process requires proving to the US Department of Labour (DOL) that no qualified, willing or available US workers can fill the position through a recruitment campaign that tests the local labour market. The employer must be able to pay the prevailing wage for the position offered.

Employers who are H-1B dependent must make good faith effort to recruit US workers before sponsoring new H-1B workers. H-1B dependency is determined based on the percentage of H-1B workers in the employer’s workforce. Companies with more than 50 full-time employees of whom 15% or more are H-1B workers are considered H-1B dependent. Some exemptions to the good faith recruitment apply, for example for those H-1B workers with a master’s degree or higher or those who are offered a salary of $60,000 or higher.

Are there any annual quota limits or restrictions on certain positions that can be filled by foreign nationals?

Each year, there is a maximum number of H-1B visas can be issued. The existing annual cap in the H-1B category is 65,000. An additional 20,000 visas are available to applicants holding a US advanced degree. Not all H-1B non-immigrant visas are subject to this annual cap. Annual caps also apply for E-3 and H-1B1 visas; however, these caps are rarely met.

Further, immigrant visas for permanent residence status (green cards) are subject to annual quotas based on the preference category (EB-1, EB-2 or EB-3) and the foreign national’s country of birth. Citizens of any one country may not utilise more than 7% of the available visas in a preference category on an annual basis. As a result of this policy, there are substantial backlogs for permanent resident visas for individuals born in India and China.

Are there any immigration exemptions or other special schemes for shortage occupations in your jurisdiction?

There are limited exemptions, but they are not relevant to most applicants. In general, all foreign nationals must possess work authorisation if working in the United States.

The DOL has identified shortage occupations eligible for exemption of the PERM labour certification process, including nurses and physical therapists. Individuals working in one of these occupations may file immigrant petitions with USCIS without completing a labour market test and receiving a PERM labour certification.

How long does it typically take to obtain a sponsored visa? Is expedited visa processing available?

The processing time can be around six months depending on the visa application.

Premium processing is available for faster processing of non-immigrant petitions, including E-1, E-2, H-3, H-1B, L-1, O-1 and TN petitions. USCIS will adjudicate these petitions within 15 calendar days. There is an additional fee of $1,225. Expedited processing is not available for E-3 petitions.

For immigrant petitions, premium processing is available for most petition categories in EB-1, EB-2 and EB-3. Exceptions include EB-1 multinational manager/executive petitions and EB-2 petitions for individuals who are members of professions with advanced degrees or an exceptional ability seeking a national interest waiver.

USCIS reserves the right to suspend or expand the premium processing programme. USCIS has temporarily suspended premium processing for temporary petitions twice in the last five years – most recently in April 2017 for all H-1B petitions. As of September 18 2017 USCIS resumed premium processing for all pending H-1B cap-subject petitions.

What rules govern the hiring of foreign third-party contractors?

For most visa categories, work on third-party client sites is generally permitted, but the worksites must be disclosed in the employer’s petition. These applications generally receive higher scrutiny and the sponsoring employer must clearly establish the employer-employee relationship and how it is maintained while the employee works offsite.

There must be a valid contract in place for services between the third-party employer and the work-site company to document who the actual employer is for the foreign national worker. Compliance with US immigration law should be included in the contract for services before placement of third-party contractors. The sponsoring employer (usually a contracting agency) must ensure that individuals placed at a third-party site have an inherent right to work or hold the appropriate work visa category before allowing a contractor or third-party worker to begin employment at any worksite. For H-1B, H-1B1 and E-3 employees, an LCA must be posted at the third-party worksite to ensure that individuals at the worksite are notified of the placement of foreign workers at the site. Petitioners of the contractors will need a complete itinerary of services or engagements if employing the beneficiary to perform services in more than one work location (in order to comply with 8 CFR 214.2(h)(2)(i)(B)). Further, they must comply with the DOL regulations requiring that they file an LCA specific to each work location for the beneficiary.

What are the penalties for sponsoring non-compliance with the relevant immigration laws and regulations?

US employers are subject to random, unannounced inspections by USCIS officials to verify job details of non-immigrant employees in specialty occupations. Employers who violate immigration law, may be subject to civil fines, criminal penalties and debarment from government contracts, among other penalties.

Are there any other special considerations for sponsors in your jurisdiction?

Some visa applications may require further administrative processing (ie, security clearance performed in Washington DC) after the consular officer interviews the applicant. Security clearance is usually required when the employee’s name or fingerprint scan reveals a potential match with another individual listed in a government database. Even a close name, birthdate or birthplace match with someone who has a record can trigger administrative processing. In addition, if the employee or any accompanying family member has been arrested in any country, even if the arrest did not result in conviction, he or she will likely be subject to additional administrative processing and should be prepared to produce any court documents related to the incident.

Males between the ages of 15 and 45 who were born in or are a citizen of one of the following countries are likely to face additional administrative processing:

  • Afghanistan;
  • Algeria;
  • Bahrain;
  • China;
  • Cuba;
  • Djibouti;
  • Egypt;
  • Eritrea;
  • India;
  • Indonesia;
  • Iran;
  • Iraq;
  • Jordan;
  • Kuwait;
  • Lebanon;
  • Libya;
  • Malaysia;
  • Morocco;
  • North Korea;
  • Oman;
  • Pakistan;
  • Qatar;
  • Saudi Arabia;
  • Somalia;
  • Sudan;
  • Syria;
  • Tunisia;
  • the United Arab Emirates; and
  • Yemen.

In late June 2017 the Supreme Court ruled that part of the Trump administration’s revised travel ban affecting six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen – may take effect, but carved out an important exemption for anyone with “a credible claim of a bona fide relationship” to a US person or entity.

The Trump administration recently issued a presidential proclamation imposing travel restrictions on certain foreigners from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. The new proclamation adds new countries (North Korea, Venezuela and Chad) to the previous travel ban and tailors travel restrictions to each country. For most companies, the new proclamation is not expected to dramatically expand the number of foreign employees subject to travel restrictions.

General employee requirements

Must sponsored employees meet any language requirements?

At present, no.

Are sponsored employees subject to any medical checks?

Medical clearance certificates are not required for temporary US work visas.

Must sponsored employees meet any medical or other insurance requirements?

Medical care and insurance may be provided through the employer or private insurance may be purchased separately.

Are sponsored employees subject to any security or background checks?

Applicants for US visas must undergo a fingerprint background check as part of the visa application process.

Are sponsored employees subject to any restrictions on studying or working second or volunteer jobs?

Employment of Students

Foreign students may apply for a F-1 visa (academic student) to enter the United States as a full-time student at an accredited academic institution or in a language training programme. They must be enrolled in a programme or course of study that culminates in a degree, diploma or certificate and the school must be authorised by the US government to accept international students.

F-1 students may not work off-campus during their first academic year, but may accept on-campus employment subject to certain conditions and restrictions. After the first academic year, F-1 students may engage in the following three types of off-campus employment:

  • curricular practical training;
  • pre or post-completion optional practical training (OPT); or
  • post-completion science, technology, engineering and mathematics OPT extension.

Once the foreign student completes a degree programme in the United States, he or she may be eligible for one year of OPT. The participating university must annotate the Form I-20, authorising the OPT. The student may then file for a Form I-765 application for employment authorisation with USCIS.

Are there any rules or standards governing the equivalence of sponsored employees’ foreign qualifications?

Different rules and standards apply depending on the visa classification. For H-1B visa issuance, regulations allow consideration of three years of progressive work experience to equal one year of college or university study towards an equivalency to a US bachelor’s degree.  For immigrant visa processing, a four-year course at a foreign institution is required to document equivalence to a US bachelor’s degree. In addition, for immigrant visa processing, a bachelor’s degree and five years of progressively responsible work experience is considered equivalent to an advanced degree for purposes of eligibility in the EB-2 classification for individuals with advanced degrees.

What are the penalties for employee non-compliance with the relevant immigration laws and regulations?

If found to be non-compliant with immigration regulations, employees can face:

  • legal action;
  • civil penalties;
  • payment of back wages and taxes; and
  • suspension from the H-1B programme.

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