U.S. immigration matters are governed by three separate federal administrative agencies: the U.S. Department of Homeland Security (DHS); the U.S. Department of State (DOS); and the U.S. Department of Labor (DOL). Within DHS, the U.S. Customs and Border Protection (CBP) regulates admission at ports-of-entry, the Immigration and Customs Enforcement (ICE) enforces immigration laws within the U.S. and the U.S. Citizenship and Immigration Services (CIS) adjudicates applications for immigration benefits. This bureaucracy often presents challenges to foreign nationals and their employers desiring to successfully navigate them.

Three (3) Primary U.S. Immigration Categories

1. Nonimmigrant visa status permits a foreign national entry to the U.S. for a finite period. Each nonimmigrant visa has specific requirements that must be met in order for an individual to qualify for admission to the U.S. Nonimmigrant employment-based visas are often location- and employer-specific.
2. Immigrant visa status (or Lawful Permanent Residence or “green card” status) permits a foreign national to live and work in the U.S. permanently (provided s/he does not engage in activities which could result in the rescission of the green card and deportation from the U.S.). Lawful Permanent Residents (LPRs) may freely change employers and generally possess the same rights and obligations of U.S. citizens; however, they may not vote, serve on juries, obtain certain U.S. government employment, or hold a U.S. passport.
3. U.S. Citizenship status may be obtained through the naturalization process by LPRs who can demonstrate good moral character and who have maintained LPR status for five (5) years, have been physically present in the U.S. for at least half of that time, and have not been absent from the U.S. for a continuous period of six (6) months or more during the five-year period. An LPR who is the spouse of a U.S. citizen with whom s/he has been living for three (3) years may apply for naturalization after three (3) years.

Tips for Employing a Foreign National in the U.S.

When determining whether to employ a foreign national worker in the U.S., it is wise to retain competent U.S. immigration counsel and keep in mind the following tips:

1. Make sure the position offered to the employee meets immigration law requirements. Each nonimmigrant or immigrant visa has specific requirements to be met and procedures to be followed. It is important to understand these requirements and procedures before agreeing to employ a foreign national in the U.S.
2. Determine a reasonable start date. A common mistake employers make is underestimating the amount of time it may take to obtain the required visa. Some visas afford more immediate work authorization than others which may carry processing delays. Avoid predetermining a U.S. employment “start date” until you have a grasp of estimated visa processing times.
3. Understand the short- and long-term immigration benefits available to the foreign national employee and his/her family members. Certain nonimmigrant visas do not permit spouses or children to work in the U.S. Other nonimmigrant visas may serve as quicker routes to lawful permanent residence. Still others permit the holder to intend to immigrate to the U.S. Immigration counsel can explain the benefits of each.
4. The best immigration strategy may not always be the fastest. Employers who rush to obtain a visa for a foreign national employee may, in doing so, fail to select the best immigration strategy for either. For example, U.S. employers who instruct foreign national employees to enter the U.S. as business visitors when in fact they will be providing services accruing to the benefit of the employer, may be risking their employees’ expedited removal from the U.S. for misrepresentation or fraud. It is better to wait and collect the proper visa for the intended activity than to try and circumvent U.S. immigration law.
5. Allow immigration counsel to work directly with the foreign national employee. The U.S. immigration process does not have to be difficult. It only becomes so when employer contacts become too entrenched in the process and try to serve as intermediaries. When immigration counsel is permitted to communicate directly with both the foreign national employee and employer contact, the process flows more smoothly and can be less complicated, and the busy employer contact’s burden is significantly reduced.
6. Maintain required immigration records to ensure compliance with U.S. immigration laws. U.S. immigration counsel can advise what records must be maintained for employees for specific visa types and processes so that the employer is prepared in the event of an audit or site visit by DHS or DOL.