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Can an employer petition for a foreign national to work for the company in the United States?

The simple answer is yes.

My next question to the prospective employer is:
Do you want your employee on a permanent basis or on a non-permanent basis?
(i.e., probationary period for the employee)

Generally speaking employers will consider employing foreign nationals either through an immigrant or non-immigrant visa.  Often times an employer will choose to begin with a non-immigrant visa because the visas can be issued faster, the employee is tied to the employer, and it give the employer time to evaluate the employee (a probationary period) since the visas are generally granted for only 3 years at a time (renewable for up to 7 years).

The immigrant visa, in comparison, can take over a year to be issued (depending on classification), but once it is granted it is permanent and the employee can then become eligible for U.S. Citizenship.

Typical non-immigrant visas include:

Visas:

  • H1-B
    • This visa is designed for employers seeking employees for “Specialty Occupations” such as computer programmers, accountants, engineers, etc.
    • Generally requires a baccalaureate degree or its foreign equivalent; or a master degree from a U.S. University for preferential treatment.
    • Requires a job offer
    • Requires a Labor Condition Application from Department of Labor
    • Requires compliance with Prevailing Wage Rate
    • Subject to visa cap (i.e., there are a specific number of visa available, excepting non-profit businesses and certain professions).
    • Eligible for premium processing
  • H2-A
    • This category is reserved for workers coming to the United States to engage in temporary agricultural labor.
  • H2-B
    • This category is reserved for workers coming to the United States to engage in temporary non-agricultural labor.

L Visas:

This visa is designed for manager, executive, or employees with “specialized knowledge” who are employed by a foreign business entity.  The basic requirements for an L visa are as follows:

  • You have been working for a company outside of the United States for at least one of the last 3 years
  • The company in the U.S. or the company to be established in the U.S. is a subsidiary or related to the foreign company.
  • The foreign company will continue to exist even though the U.S. branch of the company is in operation.
  • If you are coming to the U.S. to open a new branch of the foreign company, it should be up and running either before your come or within one year your arrival.

The L visa recipient can bring his/her spouse and children. The spouse of the L visa recipient can receive an employment authorization.

E Visas:

  • E-2:  This visa is designed for those desiring to invest in an existing U.S. business or create a U.S. based business.
    • You must be a national of a country where a qualifying Treaty of Friendship, Commerce or a similar treaty exists with the United States.
    • You have already or are in the process of investing a "substantial amount" of capital in a real or bona fide U.S. business.
    • Your capital must be placed “at risk” meaning that in the even the investment sours, there are no guarantees of recouping your investment.
    • To be a bona fide business generally means the business is real and active or that the efforts to create the business are real and active.
    • You must be able to show that the business can or is generating enough income to support you and your family.
    • Finally, you must be able to show that you possess the funds to invest or proof that you have already made the investment.  If you have not invested the funds yet, you must be able to provide evidence of the source of your capital.
    • You must be able to show that you have a controlling interest in the business.  You must show you own at least 50% of the business or that you are a manager of the business.

Typical immigrant visas include:

  • EB1 (Employment Based Category 1):  This category of visa is reserved for immigrants who possess extraordinary ability in science, arts, education, business, or athletics
    • This category of visa does not require a labor certification
    • This visa does not require an employer
  • EB2:  This category of visa is reserved for immigrants who possess advance degrees or immigrants with exceptional abilities.
    • This category does require a labor certification unless US-CIS waives this requirement due to national interest.
    • This visa does require an employer unless US-CIS waivers this requirement due to national interest.
  • EB3: This category of visa is reserved for immigrants who hold at least a baccalaureate degree or its foreign equivalent; Or skilled or unskilled workers.
    • This category does require a labor certification
    • This category does require a job offer
  • EB-5: This category of visa is reserved for those immigrants who, through investment, create jobs for American workers.
    • It requires investment in a new commercial enterprise
    • It requires an investment of between $1 million or $500,000 depending on investment.
    • It must result in job creation.