Acquiring Employment In The USA For Foreign Nationals

An article written by Orsolya Hamar-Hilt of Bloomfield & Kempf, serving our Upper Arlington & Columbus Employment Immigration community for over 50 years

Immigration law was never referred to as an easy-subject matter due to its complex regulation, that it does not follow any other procedures or substance from other areas of law such as torts or criminal law. Immigration policies are daily changing; thus, compliance is even more challenging. This article intends to give a broad overview for potential employers what to look for when hiring a non-U.S. citizen.

For a non-U.S. citizen to work in the United States, one must have either a permanent resident card (commonly knowns as green card), employment authorization document or employment related visa. 8 CFR 274 (a) (12) lists all such categories.

A permanent worker is an individual who is authorized to live and work permanently in the United States. Permanent resident card based on employment is issued for ten years, and the permanent resident can apply for extensions or for naturalization after five years.

Employment authorization can be granted in various situations, including a person in refugee or asylum status, which is incident to status, a fiancée of a U.S. citizen has permission to work but must file for authorization (EAD card), a person in temporary protected status. The expiration date on the EAD is determinative of how long the card holder can work in the U.S. legally. In these situations, the card may or may not be extended. Before hiring a person with employment authorization card, potential employers should consult immigration professionals to determine whether the card can be extended so to save the employer the inconvenience of hiring a person whose work permit either expires rapidly or no extension is allowed.

The most known temporary employment-based visa category is the H1B visa. The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge, i.e.: college education or above. The H visa may be approved for three years and can be extended for an additional three years. This is subject to a quota and must be filed on April 1st for October 1 start unless employer is affiliated with a college or university.