U.S. immigration matters are governed by three separate federal administrative agencies: The Department of Homeland Security (DHS), the Department of State (DOS) and the Department of Labor (DOL).
Within DHS, Customs and Border Protection (CBP) regulates admission at ports-of-entry. Immigration and Customs Enforcement (ICE) enforces immigration laws within the U.S. U.S. Citizenship and Immigration Services (USCIS) adjudicates applications for immigration benefits.
There are three primary U.S. immigration categories
Nonimmigrant visa status permits a foreign national (FN) entry to the U.S. for a finite period. Each nonimmigrant visa has specific admission requirements for an FN to enter and legally remain in the U.S.
Most employment-based nonimmigrant visas are employer-specific, while others are also job- and location-specific.
Lawful Permanent Residence
Lawful Permanent Residence (or Immigrant visa status or “green card” status) permits a foreign national to live and work in the U.S. permanently, provided the FN does not engage in certain prohibited activities which could result in the rescission of the green card and deportation from the U.S.
Lawful Permanent Residents (LPRs) may freely change employers and generally possess the same rights and obligations of U.S. citizens. However, they may not vote, serve on juries, obtain certain U.S. government employment or hold a U.S. passport.
U.S. Citizenship may be obtained through the naturalization process by LPRs. The complete list of eligibility requirements for naturalization are:
- Lawful Permanent Resident Status for five years (three years if the applicant is married to a U.S. Citizen)
- Continuous residency in the United States for the last five years
- Continuous residence in the United States from the date of filing to the date of adjudication
- Physical presence in the U.S. for at least half of the last five years (30 months, or 18 months if married to a U.S. Citizen and applying after three years)
- Good moral character
- Residency in the state or USCIS district where you apply for at least three months prior to filing
- Basic knowledge of English and U.S. Civics
Tips for employing a foreign national in the U.S.
Immigration law is complex, and the regulatory framework is complicated and ever evolving. Consequently, when determining whether to employ a foreign national worker in the U.S., companies should retain experienced immigration counsel and keep the following in mind:
— Make sure the position offered to the employee meets immigration law requirements. Each nonimmigrant or immigrant visa has specific requirements and related procedures. It is important to understand these requirements and procedures before agreeing to employ a foreign national in the U.S.
— Determine a reasonable start date. A common mistake made by employers is underestimating the time required to obtain an appropriate visa. Some visas afford more immediate work authorization than others. Avoid predetermining a U.S. employment “start date” until you have expert advice regarding estimated visa processing times.
— Understand the short- and long-term immigration benefits available to the foreign national employee and their family members. Certain nonimmigrant visas do not permit spouses or children to work in the U.S. Other nonimmigrant visas may provide a shorter path to lawful permanent residence. The landscape is complicated, requiring the assistance of highly specialized legal counsel to best navigate the various options and reduce risk.
— The best immigration strategy may not always be the fastest. Employers who rush to obtain a visa for a foreign national employee may, in doing so, incur very substantial risks. For example, U.S. employers who instruct foreign national employees to enter the U.S. as business visitors and then use the services of those employees accruing to the benefit of the employer, may expose the employee to expedited removal from the U.S. for misrepresentation or fraud. It is better to wait and obtain the proper visa for the intended activity rather than try to circumvent immigration law.
— Allow immigration counsel to work directly with the foreign national employee. When immigration counsel is permitted to communicate directly with both the foreign national employee and the employer contact, the process flows more smoothly and can be less complicated. The employer contact’s burden is significantly reduced, as well.
— Maintain required immigration records to ensure compliance with U.S. immigration laws. Immigration counsel can advise what records must be maintained for employees for specific visa types and processes so that the employer is prepared in the event of an audit or site visit by DHS or DOL.