If you are an employer based in the United States and you wish to hire a foreign born nation for your business, you may be able to do so by sponsoring this employee for a work visa. However, this process can be complex, as it often involves determining the appropriate visa categories, filing paperwork, and, in some instances, completing a labor certification with the Department of Labor. As such, if you are ready to proceed with your hiring decision in Milwaukee or the surrounding Wisconsin communities, the following blog can help you navigate this process.
What Does It Mean to Sponsor an Employee for a Work Visa?
It is common practice for United States employers to ask whether job applicants will require sponsorship to work for them legally. However, you avoid making hiring decisions solely based on whether or not an applicant requires a sponsorship, as this may be argued to be a form of national origin discrimination in your hiring decisions. Rather, employers should understand the established legal pathways to sponsor qualified foreign workers to work in the United States.
Most employment-based immigration cases require a U.S.-based employer to sponsor a foreign national by submitting necessary immigration petitions and potentially filing documents with the Department of Labor. The most common visa categories are the EB-1, EB-2, EB-3, and EB-4 visas.
In general, sponsoring an employee for a work visa typically means the U.S.-based employers will file an immigrant petition on behalf of the employee so they may live and work legally in the United States.
What Is Employment-Based Visa Sponsorship?
- A U.S.-based employer files a petition with the federal government to allow a foreign worker to work legally in the country
- Sponsorship requirements vary depending on the employment-based visa category
- Some visa categories require labor certification with the Department of Labor
- A majority of immigrant work visas require the employer to file Form I-140
- Employment-based visas are subject to annual limitations and long processing times
What Types of Employees May an Employer Sponsor?
Before an employer can sponsor an eligible foreign employee in Milwaukee, Cedarburg, West Allis, or the surrounding metropolitan area, they must first determine which employment-based (EB) visa the individual is eligible for. This is generally dependent on the education, professional experience, specialized abilities, and intended role of the worker.
EB-1 for Priority Workers
This category is typically reserved for priority workers, which commonly include:
- Those with extraordinary abilities in
- Math
- Science
- Arts
- Education
- Business
- Athletics
- May also include certain multinational business executives and professors
- Sponsoring employees will generally file Form I-140
EB-2 for Professionals With Advanced Degrees or Persons With Exceptional Ability
This category is typically reserved for:
- Those who have advanced decrees
- Those with exceptional abilities in arts, business, or science
- Sponsoring employees often require PERM labor certification and Form I-140
EB-3 for Professional or Skilled Workers
The EB-3 visa category is generally designated to:
- Professionals with a Bachelor’s Degree or equivalent
- Skilled workers who have at least two years of hands-on training
- Certain unskilled workers, when no eligible U.S. workers are available
- Sponsoring employees often require PERM labor certification and Form I-140
EB-4 Visas for Special Immigration
The EB-4 visa category is reserved for special immigrant workers, including:
- Religious workers
- Certain government workers
- Certain physicians
Employers looking to sponsor workers in this category must file Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
How Can an Employer Sponsor an Employee for a Work Visa?
Milwaukee employers looking to sponsor foreign workers must adhere to a number of important steps and legal requirements when sponsoring an employee to ensure compliance with immigration law.
Employers throughout Milwaukee, Cedarburg, West Allis, and the surrounding communities often used employment-based immigration to fill important roles in industries facing workforce shortages like healthcare, technology, engineering, and hospitality.
Step 1: Determine the Appropriate Visa Category
In general, the first step in sponsoring an employee to work in the United States is to determine which employment-based visa category they are eligible for. These commonly include the aforementioned EB categories. As such, you should review USCIS guidance to determine which category is best based on the worker’s skills and intended job role.
Step 2: Complete the Required Labor Certification
In many EB-2 and EB-3 visa categories, employers are required to file a PERM Labor Certification with the U.S. Department of Labor before filing Form I-140. This typically requires the employer to:
- Enforce prevailing wage determinations
- Document recruitment efforts
- Advertise the job position
- Show that no qualified U.S. workers are available to fill the role
Step 3: File Form I-140 with USCIS
Once Labor Certification is complete, the employer will generally file Form I-140, Immigrant Petition for Alien Worker. Once submitted, USCIS will examine:
- The eligibility of the employer
- If the employee is qualified
- Supporting immigration documents
Step 4: Wait for Government Approval
You must understand that your prospective employee cannot enter the United States and begin working at your company until you receive an official notice of approval from the USCIS. Unfortunately, getting this permission may take considerable time. This is because there is an overall high demand for employment-based visas. On top of this, the USCIS imposes a limit on the number of these visas it distributes per year.
That is, every fiscal year (October 1st through September 30th), the USCIS makes 140,000 work visas available for qualified applicants. As you already know, these visas are divided into five preference categories: EB-1, EB-2, EB-3, EB-4, and EB-5, Immigrant Investor Program. And so, there may be more EB-1 visas given as opposed to EB-2 visas (generally 40,000 visas plus any unused visas from the EB-4 and EB-5 categories), and so on and so forth.
Contact an Experienced Milwaukee Immigration Attorney Today
This is to say that, even if you fill out the necessary forms correctly and your prospective employee meets all the eligibility criteria, there is still a chance they may not be granted a work visa sponsorship opportunity. If you have made it this far, please do not hesitate to seek further information from a skilled work authorization permit lawyer in Milwaukee, WI. The team at Sesini Law Group, S.C., is willing and able to guide you through your future legal processes. Contact us today to learn how we can represent you.