Frequently Asked Questions about Immigration Law
Q: What steps must an employer take to sponsor a foreign national for full-time, permanent employment in the U.S.?
A: The employer will need to first determine which category of employment-based visas the foreign national is eligible for (EB-1, EB-2, EB-3 or EB-4). Next, the employer then must determine whether a labor certification from the Department of Labor is required for the particular class. If one is required, the employer must have the certification approved prior to filing a petition with the U.S. Citizenship and Immigration Services office to obtain a visa for the worker.
Q: What is the PERM process?
A: PERM is the process employers must use to apply for permanent labor certification from the Department of Labor (DOL) for foreign nationals they seek to hire for permanent, full-time employment in the U.S. As part of the PERM process, regulations were passed that require employers to conform to specific standards in the certification process, including in their recruitment efforts. See Title 20 of the CFR, Part 656 for a complete list of the PERM regulations.
Q: What type of work may foreign nationals perform on temporary work visas?
A: There are a number of types of temporary work visas available. They include those for priority workers in specialty occupations, foreign nurses, temporary/seasonal agricultural and non-agricultural workers, trainees, intracompany transferees, those with extraordinary abilities in art, sciences, education and business and participants in international cultural exchange programs, among others. The U.S. government limits the number of nonimmigrant visas that can be issued for some of these categories.
Q: What must an employer do to obtain a prevailing wage determination?
A: As part of the labor certification process, the employer must supply the prevailing wage for the job which the employer wishes to hire the foreign worker. The prevailing wage is defined by the Department of Labor as “the average wage paid to similarly employed workers in the requested occupation in the area of intended employment.” Employers should contact the State Workforce Agency (SWA) in the jurisdiction of the proposed employment in order to obtain a copy of the prevailing wage.
Q: What is a recruitment report?
A: As part of the labor certification process, the employer must provide a recruitment report that details the employer’s efforts to fill the open position(s) with U.S. workers. The report must meet the requirements set out for recruiting either professional or nonprofessional occupations in the U.S. Code of Federal Regulations (Sections 20 CFR 656.17(e)(1) and 20 CFR 656.17(e)(2), respectively). The report must include details such as the number of U.S. workers whom applied for the position and the employer’s reasons for rejecting those applicants. An important component of receiving labor certification is that the employer must be able to show that there were no qualified, willing, able and available U.S. workers to fill the positions, and that by hiring foreign workers, the wages and working environments of American workers employed in similar occupations will not be adversely affected. The recruitment report is an essential tool is making this determination.
Q: Must employers receive labor certification from the Department of Labor for all temporary nonimmigrant and permanent immigrant workers?
A: No, although most classes do require it. The Department of Labor has pre-determined a set of occupations for which there is a shortage of U.S. workers and by employing foreign workers to perform these occupations, U.S. workers’ wages and working environments will not be adversely affected. Known as “Schedule A” occupations (20 CFR 656.15), this group includes physical therapists, professional nurses, those with exceptional ability in the arts and sciences (such as university-level teachers) and those with exceptional ability in the performing arts.
Q: How long does it take to complete the process for hiring foreign workers for permanent, full-time positions?
A: The total time for completing the process can vary depending on several factors, including the type of visa requested and the location of the employment, among other variables. It may take a couple of months or a couple of years. Current processing times can be checked on the Department of Labor’s website. Processing times for temporary work visas can be shorter, with H-1B visas taking as little as seven working days.
Q: What qualifies as “temporary or seasonal work” under the H-2A temporary work visa classification?
A: Temporary or seasonal work is defined by the Department of Labor as work that either 1) lasts less than one year or 2) begins and ends in accordance with a planting or harvesting season.
Q: What is the government organization that oversees an individual’s immigration status?
A: The United States Citizenship and Immigration Services (USCIS) bureau of the Department of Homeland Security (DHS) is the main organization charged with overseeing immigration. Many of the USCIS’s duties were formerly handled by the Immigration and Naturalization Service (INS). The Department of Labor is also involved in some stages of employment-based immigration (such as reviewing requests for labor certification), as is the U.S. Department of State (issuing visas).
Q: What steps need to be taken to employ foreign nationals for temporary work?
A: Employers should first contact the U.S. Department of Labor to apply for labor certification under the program that fits the type of work the prospective employee will perform. If the DOL provides the employer with a labor certification, the next step is to submit a petition to the USCIS for the temporary worker. Upon approval of the petition, the temporary worker can apply for a nonimmigrant visa at the U.S. embassy or consul in his or her home country.
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