Overview: In this global economy, multinational employers are not only transferring executives and managers to US offices but even small business owners hire foreign citizens for their workplace. Whether big or small, if an employer has foreign citizens working for it on US soil, it must ensure that those foreign citizens have the proper work visas.
There are many different types of visas depending on an individual's profession and whether the individual intends on coming to the US temporarily or permanently. Even in temporary situations, the duration of each visa differs.
In order to apply for a temporary worker visa, an employer must file the appropriate paperwork with the United State Citizenship and Immigration Services. However, the filing of employment-based immigration petitions and applications with the government does not create an exception to the doctrine of at-will employment. Therefore, employers need to make sure employees understand that there is a difference between the length of the temporary visa, which is definite, and the nature of the employee's employment, which is indefinite and at-will.
Trends: There is a cap on the number of H-1B visas allowed per year. H-1B visas are used for individuals with a specialty occupation position, which is defined as a job that requires at least a bachelor's degree (or its equivalent) in the specialty. In the last few years, the cap on H-1B visas has been reached long before the end of the government's fiscal year-sometimes within days of when the petitions can be filed. Therefore, employers should file necessary documents and petitions as early as possible.
Author: Melissa A. Silver, JD, Legal Editor
Updated to include notice requirements for employers regarding a federal agency inspection, effective June 6, 2019.
USCIS has issued a final rule amending the process by which the agency selects H-1B visa petitions. It also announced that it will begin accepting FY 2020 H-1B visa petitions on April 1, 2019.
Updated to include information regarding third-party worksite H-1B petitions.
Employers that hope to hire foreign workers under the H-1B program should prepare to file as close to April 2 as possible. In recent years, US Citizenship and Immigration Services (USCIS) has reached its limit on H-1B visas within five days.
Updated to reflect travel restrictions for certain foreign nationals.
Enhanced to improve the comprehensiveness, organization and scope of coverage.
Effective January 1, 2018, the Immigrant Worker Protection Act will require employers in California to demand that immigration enforcement agents obtain a subpoena or judicial warrant before entering nonpublic areas of their workplaces or accessing certain employee records.
President Trump has ordered an end to the Obama-era DACA program, which protected undocumented immigrants brought to the US as children from deportation. The administration set a March 5, 2018 deadline for Congress to act to preserve DACA's protections before individuals begin losing their legal status.