Immigration for Employers

Employment based visas—like all visas—are categorized as either immigrant or non-immigrant. Immigrant visas are intended for individuals who plan to relocate permanently to the U.S., where non-immigrant visas are intended for those who plan to come to the U.S. temporarily for a specified purpose and then return to their home countries. The process to obtain an immigrant visa is, in general, more stringent than obtaining a non-immigrant visa.

In order to protect jobs for U.S. Citizens and Lawful Permanent Residents—commonly referred to as green card holders—employers seeking authorization for non-immigrant H-1B, H-1B1, and E-3 workers must obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor (USDOL). The LCA is an employer attestation regarding the position the workers will fill, the number of workers, wage to be paid, labor conditions, etc. The certified LCA must be obtained prior to filing with U.S. Citizenship and Immigration Services (USCIS) for the actual visa. Therefore, timing is critical for employers seeking H-1B workers due to the annual cap, number of petitions routinely filed, and the initial filing date for the annual cap: typically April 1. Failure to meet the filing deadline will likely cause the petition to be delayed by one year.

To obtain an EB-3 visa, the employer must obtain a Permanent Labor Certification from the USDOL. This process includes testing the labor market through a variety of advertising channels to demonstrate to the Department of Labor that there are no qualified, available U.S. workers who are able and willing to fill the position. The recruitment must be done in good faith, applicants promptly interviewed, and then only disqualified for lawful, job-related reasons. The timing of the advertisements, interviews, and filing of the PERM Application are critical and the entire process must be meticulously documented. Failure to comply with the regulatory timing requirements will cause a denial of the certification.

For both the LCA and PERM Application, the employer—or the employer’s attorney—must obtain a Prevailing Wage Determination (PWD) from the USDOL prior to filing the application. In the case of a PERM Application, the PWD must be obtained prior to testing the labor market. The employer must prove the ability to pay the prevailing wage and attest that the prevailing wage will actually be paid to the foreign worker.

If you have questions about how your business can employee foreign workers in specialty occupations, relocate a multinational executive, or sponsor a foreign worker for a permanent position, contact our office to schedule an appointment with one of our immigration attorneys.