How to hire foreign employees in the US
Article 5 minute read

How to hire foreign employees in the US

18 April 2019

US-based companies looking to hire a foreign person to work in the country must understand the difficult visa processes.

While there are complexities around bringing foreign talent into the US, there still are many options for building your workforce with qualified employees, especially when looking to transfer current employees from other countries.

Prior to hiring foreign workers in the US, companies have many things to consider such as cost and time commitment, documentation and procedures and types of visas.

Cost and time

While the fees charged by the US government agencies may not be excessively high, there are other costs to consider that can add up fast. The amount of time plus professional fees charged for the correct documentation and filings and translations could cost your company. To hire a foreign employee, a US company will have to sponsor the visa, which in most cases requires that they not only show sufficient means but also invest in their current operations. There is also a risk of denial that comes with applying for any type of visa and having to spend the time and money when the application does not get approved and you have to start over cannot only be inconvenient but also result in unplanned costs.  The process to bring an employee to the US can take weeks to months depending on the circumstances. 

Documentation

Gathering the correct information to submit the visa application can be challenging. Everything must be explained in detail such as what the company does, the financials of the company, how many employees they have, what the role of the foreign employee would be and why the person would qualify for the visa, plus much more. This process tends to lead to a request for additional evidence and if the information still does not meet the requirements for approval then a decision notice will be given denying the visa. All of the documentation must also be translated into English. This includes resumes of the employees, company descriptions and corporate documents, etc. These packages, when submitted, can contain well over 300 pages of documentation. 

Types of visas

There are four main categories (L, E, H and P) of work visas that can be granted to foreign nationals looking for temporary employment in the US. They are broken down into sub-categories for different types of work.

L visas

L1- A is the visa for foreign workers looking to transfer to a new or existing US business. The employee must be on a managerial or executive level and has already held their foreign position for a year. The business has to prove that it will invest in the US by showing they have an office here and have the funds to grow their business in the US. This visa is issued for three years and are renewable in increments of two years for up to seven years. 

L1-B visas are also for new or existing businesses in the US but these workers are professionals with specialized knowledge of the industry, techniques, products or processes needed for the business operations. These employees also need to have worked for in their position in the foreign country for at least a year. L1-B visas are issued for three years and are renewable in increments of two years for up to five years. 

E visas 

E1 visas are for traders and although normally used for the Treaty Trader, it can be used to transfer certain employees to the U.S. to carry-on the underlying trade activity. These are issued for two years with no limit for renewals. 

E2 visas are for investors who must make a substantial investment in the U.S. and may transfer a qualified employee to develop and direct the investment enterprise. These are issued for two years with no limit for renewals. 

Both require a treaty between the US and the country of the employer/foreign worker.

H visas

H1-B visas are for temporary skilled, educated foreign workers who are employed in specialized occupations such as IT, finance, accounting, architecture, engineering, mathematics, science, medicine, etc.

H2-A visas are for foreign seasonal agricultural workers. Companies must test the labor market first to make sure there is a shortage of domestic American workers before looking abroad.

H-2B Visa is for temporary foreign workers in non-agricultural fields to work in the United States such as, truck drivers, ski mountains, hotels, beach resorts, or amusement parks. Again, the labor market must be tested to make sure there are not enough natural US born citizens to fill the positions. 

Both of these visas are given out on April 1st via a lottery.

P visas 

P visas are used mainly used for artists and sport’s athletes that are coming to the US for temporary engagements.

Citizenship 

Getting a work visa in the US does not mean that your employee will be able to eventually become a US citizen. In fact, there are some visas that explicitly state you cannot intend to permanently reside in the U.S. and must demonstrate that your stay is temporary. The process to become a citizen would first require an adjustment of status to get a green card through a long process with qualifications and much paperwork. Depending on the nationality of the foreign worker, there can be years of backlog to the process and the adjustment of status as the individual must wait for a visa to become available.

We can help 

TMF USA can help your business obtain L1 visas for qualified professional foreign employees by managing the entire process. We can put together the documentation needed to apply for the visas and make the process as seamless as possible so you can focus on your day-to-day operations.  Our experts can also incorporate your new entity if you are opening a new office in the US. As the experts at helping companies with all of their incorporation, HR and payroll needs for any type of employee, we can handle all aspects of these processes. Talk to us

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Written by

Jessica Valenzuela

Corporate Services Legal Counsel
Jessica

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