Employers may sometimes need to hire foreign labor when there is a
shortage of available US workers to fill certain jobs. Under certain
conditions, US immigration law may allow a US employer to file a nonimmigrant
worker petition with the US Citizenship and Immigration Services (USCIS,
formerly INS) on behalf of a prospective foreign citizen employee. Upon
approval of the petition, the prospective employee may apply for admission
to the US or for a change nonimmigrant status while in the US to temporarily
perform services or labor or to receive training. For most employment-based
nonimmigrant visa categories, the employer starts the process by filing
the Petition for Nonimmigrant Worker with USCIS. Please note that in
some cases the employer must file a Labor Condition Application or Application
for Alien Employment Certification with the Department of Labor (DOL)
and/or obtain certain consultation reports from labor organizations
before filing a petition with USCIS. There are numerous nonimmigrant,
employment-based visa categories. Under all of these categories, listed
below, the foreign citizen must meet specific requirements related to
the occupation for which the employer is petitioning.
The following is a list of the most common visa classifications under
which a foreign citizen temporarily engage in employmentrelated activities:
Visa - Canadian or Mexican professionals under NAFTA
Question: Am I required to file an application or other request
with the US Department of Labor for every foreign national employee?
For the H1B, H2A and H2B nonimmigrant classifications, it is necessary
to first request certain types of certification from the US Department
of Labor (DOL). For H1B nonimmigrants, a Labor Condition Application,
and for H2A and H2B nonimmigrants, an Application for Alien Employment
Certification must be filed in accordance with the DOL requirements.
It is not necessary to file an application or attestation with the
DOL for the other nonimmigrant, employment-based or investor-based
visa classifications previously listed.
Question: What happens after I have filed a Petition for a Nonimmigrant
After you file, the USCIS will send you a receipt so you know that
they have received your petition. If your petition is incomplete,
the USCIS may have to reject it and return your fee, or ask you for
more evidence or information, which will delay processing. The USCIS
will notify you when they make a decision. If the prospective employee
is in the US in a valid nonimmigrant status, he or she can begin working
for the employer upon approval of the petition, provided that the application
form contained a change of status or extension of stay request that was
If the prospective employee is residing outside the US or appears
to be ineligible to change his or her status while in the US, the
petition will be sent to the US consulate nearest the prospective
employee’s foreign residence. The prospective employee can then
apply at the US consulate for a nonimmigrant visa. If the visa is
issued, he or she will then be able to travel to the US and apply
Question: Can an employer request expedited adjudication of a
Petition for a Nonimmigrant Worker?
An employer may request Premium Processing Service when filing the
Petition for Nonimigrant Worker. Premium processing is an expedited
service that gurantees a response from the USCIS within 15 calender
days. The regular processing time often takes several months. The
USCIS charges an additional $1,000 filing fee for employers that request
premium processing service.
Question: How long may a nonimmigrant employee stay in the US?
The initial period of stay granted to a temporary employee varies
depending upon the specific visa category. Likewise, the maximum period
of initial stay allowable varies depending upon the specific visa
category and on the foreign citizen’s intended employment. This
information may be found on the Form I-94 that the employee received
upon entering the US or on the USCIS issued approval notice, in the
case of a change of status or extension of stay. As noted below, in
certain cases, a foreign national may seek to remain in a nonimmigrant
classification longer than the period for which he or she was initially
admitted or granted, up to the maximum period allowable by law.
Question: How can an employee extend his or her status if it is
about to expire?
If it appears that an employee may be needed longer than the period
for which he or she was admitted in his or her current nonimmigrant
status, an employer may be able to file a new Petition for Nonimmigrant
Worker on behalf of the employee. To avoid disruption of authorized
employment, employers are encouraged to file a petition to extend
the employee’s status well before it expires. Note, however,
that if the employee has already stayed for the maximum period of
time allowable, an extension may not be granted.
Question: If I filed for an extension of status for my employee,
but have not received a decision by the time his or her status expires,
can I continue to employ him or her?
• USCIS receives a Petition for Nonimmigrant Worker to extend
an employee’s status before his or her status expires and;
• The employee has not violated the terms of his/her status;
• The employee meets the basic eligibility requirements;
then the employee may continue to be lawfully employed for a period
of up to 240 days, or until USCIS makes a decision on the extension
application, or until the reason for your requested extension has
been accomplished – whichever comes first. If the request for
extension is denied and the employee’s status has already expired
while the employee is in the US, he or she will be considered to have
been “out of status” as of the date his/her status expired.
If this should happen, the employee will be required to cease employment
immediately and depart from the US upon denial of the petition. There
is no appeal to a denial of a request for an extension of status.
The period of time that the foreign national has been “out of
status” may affect his/her ability to return to the US following
his/her required departure.
Question: What is H1B Portability?
Section 105 of the American Competitiveness in the Twenty-First
Century Act (AC21) provides that a nonimmigrant who was previously
issued an H1B visa, or provided H1B nonimmigrant status, may begin
working for a new H1B employer as soon as that new employer files
a “nonfrivolous” H1B petition on the nonimmigrant’s
• The nonimmigrant was lawfully admitted to the US; and
• The nonfrivolous petition for new employment was filed before
the end of their period of authorized stay; and
• The nonimmigrant has not been employed without authorization
since his lawful admission to the US, and before the filing of the
The H1B worker is authorized to work for the new employer until
the petition is adjudicated.
Question: What are employers liable for once a nonimmigrant is
in their employ?
Under immigration law, an employer is liable for the reasonable costs
of return transportation abroad for a foreign citizen employee in
the H1B or H2B visa categories, if the employer dismisses the employee
from employment before the end of the period of authorized admission.
If employment is terminated for an employee in the O or P visa categories,
for reasons other than voluntary resignation, the employer and the
petitioner are jointly and severally liable for the reasonable costs
of return transportation for the foreign national employee.
Employers must keep USCIS informed of any firings, termination of
employment, or changes in the employee’s eligibility by submitting
a letter to the USCIS office that has jurisdiction over the particular
application or petition. Please note that the employee may only perform
the duties described in the petition. As an employer, you also have
many other labor-related responsibilities separate and apart from
those required under the immigration laws. For information regarding
these other responsibilities, please contact the appropriate US Government
or State agency. All US employers are required by law to verify the
employment eligibility of all workers employed in the US regardless
of their immigration status through the Form I-9, Employment Eligibility
Question: Can I file a Petition for Nonimmigrant Worker even though
I may wish to help this employee get permanent resident status?
When applying for the nonimmigrant visa at a US embassy or consulate
abroad, nearly all applicants must prove that their intention is to
remain in the US temporarily and to depart after they have fulfilled
the purpose of their intended stay for which they are seeking a nonimmigrant
visa, whichever is shorter.
There are certain exceptions. For example, H1B, L1A and L1B nonimmigrant
workers may be able to maintain lawful nonimmigrant status and, at
the same time, be beneficiaries of an immigrant visa petition, even
if the workers themselves may have taken certain steps toward obtaining
lawful permanent resident status without affecting their nonimmigrant
In the case of other classifications, the mere filing of an immigrant
visa petition on behalf of a nonimmigrant worker, without any action
taken on the part of the worker himself or herself, may not necessarily
have an adverse effect on the worker’s nonimmigrant status.
Question: If I want to hire more than one employee, can I include
all of them on one petition?
This depends on the particular nonimmigrant visa classification that
you are seeking for the prospective employees.
• The H1B, H3, O, and R visa categories do not allow for multiple
employees on one petition.
• For L1 visa categories, although a prospective employer
may file a single “blanket petition” to establish the
requisite intracompany relationship, once the blanket petition has
been approved, each individual employee seeking to work for the blanket
petitioner must still file his or her own Nonimmigrant Petition Based
on Blanket L Petition.
• For the H2A, H2B, P, and Q nonimmigrant visa categories,
a single petition may cover multiple workers if the workers meet certain
Question: Can my employee change employers or work for more than
one employer at the same time?
Yes, but each employer must file a separate Petition for Nonimmigrant
Worker and, where applicable, the appropriate Labor Certification,
Labor Condition Application, or Labor Attestation with the DOL, and
receive approval from USCIS before the employee may begin to work
for a new or an additional employer. Please note that a foreign citizen
who is eligible for H1B portability may begin working for the new
or additional employer once that employer has appropriately filed
the Petition for Nonimmigrant Worker with USCIS.
THE INFORMATION ON THIS WEBSITE IS NOT TO BE CONSIDERED LEGAL
ADVICE. SUCH INFORMATION IS INTENDED TO EDUCATE MEMBERS OF THE PUBLIC
GENERALLY AND IS NOT INTENDED TO PROVIDE SOLUTIONS TO INDIVIDUAL PROBLEMS.
READERS ARE CAUTIONED NOT TO ATTEMPT TO SOLVE INDIVIDUAL PROBLEMS
ON THE BASIS OF INFORMATION CONTAINED HEREIN AND ARE STRONGLY ADVISED
TO SEEK ADVICE FROM AN EXPERIENCED IMMIGRATION LAWYER REGARDING SPECIFIC
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