What is Employment Sponsorship?
The United States offers many work opportunities for work. Foreign nationals often seek employment in the United States based on these opportunities. However, foreign nationals are not allowed to work in the United States unless the United States government has authorized them to do so.
Federal law allows United States companies to hire foreign nationals to work in the United States, either temporarily or permanently. Foreign nationals must obtain permission to work in the United States by securing nonimmigrant or immigrant visas. The term nonimmigrant visa generally refers to a temporary visa to work. In contrast, an immigrant visa refers to a visa to work where the non-U.S. citizen ultimately seeks to obtain permanent residence (a green card) in the United States. The U.S. Department of State Bureau of Consular Affairs and U.S. Citizen and Immigration Services (USCIS) offers instructions on their websites for obtaining immigrant and nonimmigrant work visas.
For a foreign national to obtain a job in the United States, the person must usually obtain sponsorship from a U.S. employer. Employers who want to hire foreign nationals must submit an application with the U.S. federal government and meet certain requirements for sponsorship. This article discusses how U.S. employment sponsorship works.
Who is Eligible?
Employment sponsorship in the United States is available to foreign nationals who are not permanent residents or U.S. citizens and who have no inadmissibility issues. The company that wants to hire you will need to sponsor you in order to give you a job in the United States. By sponsoring you for employment and thus helping you obtain a work visa, an employer certifies to the United States government that you will be a legal, working resident of the United States during your employment.
What Are the Requirements?
To obtain authorization for a foreign national to work in the United States, employers must submit various forms of documentation showing that they have a certain job opening that they need to fill and that a foreign national can fill that job. For some employment work visas (but not all), the employer must show that it tried but could not fill the position with a qualified American worker. Employer sponsors will help the employee complete their work visa application, prepare the labor certification documentation, and submit the petition for the visa.
What Types of Employers Are Eligible?
Any U.S. employer willing to provide sponsorship for visas can do so as long as they take all the steps necessary to obtain the sponsorship. The most common types of employer sponsors are tech companies, consulting firms, investment banks, financial service companies, manufacturing companies, and education employers. Some employers, like universities or other non-profits, do not have to file a Labor Certification, and can more easily hire foreign workers.
Employers must typically go through the following steps before they can become visa sponsors:
- Make sure the available position qualifies as a specialty occupation
- Determine the position’s salary
- Place an ad for the position in the United States directed to the U.S. workforce
- Submit to the U.S. Department of Labor a Labor Condition Application
- Submit a completed visa form to USCIS
What is a Visa Sponsorship Letter?
A visa sponsorship letter is not necessarily a letter. Rather, it’s a set of documents the employer submits to USCIS, stating the reasons for hiring a foreign national for an open job position. The documents will typically include the foreign national’s employment contract with the company, the job description, and documents showing that the foreign national is qualified for the job. For some types of visas, the employer may have to also certify that the employer could not find an American citizen suitable for the job.
Nonimmigrant Visas Employment Sponsorships
The United States government grants nonimmigrant visa employment sponsorships where the employer wants to offer a job to a foreign national. However, the foreign national is not seeking permanent residency or citizenship in the United States in this situation. Therefore, a nonimmigrant visa employment sponsorship is typically given to a person who is only moving temporarily to the United States just to work for this company and maintain the intention to leave the U.S. if or when the job terminates or when the visa expires.
For most nonimmigrant employment visa sponsorships, the employer must submit what is known as Form 1-129, Petition for Nonimmigrant Worker. Also, some temporary visa categories require employers to obtain a labor certification from the Department of Labor (”DOL”) before petitioning for a work visa on their behalf. A labor certification verifies that there are not enough available, qualified, and willing U.S. workers to fill the offered position. The certification also states that hiring a foreign worker will not adversely affect similarly employed U.S. workers’ wages and working conditions.
The following types of nonimmigrant visas require employer sponsorship:
- H-1B Visa (workers with at least a bachelor degree and those working in certain specialized occupations, also includes fashion models with distinguished merit and ability, government-to-government research and development, and co-production projects administered by the U.S. Department of Defense)
- H-2A Visa (temporary or seasonal agricultural workers, limited to citizens of designated countries)
- H-2B Visa (temporary non-agricultural workers, limited to citizens of designated countries)
- H-3 Visa (trainee or special education visitor, to receiving educational training (but not graduate medical or academic) not available in the person’s home country for children with mental, physical, or emotional disabilities)
- L1 Visa (for certain intracompany transfers)
- O-1A Visa (for persons with extraordinary sciences, arts, education, business, etc.)
- O-1B Visa (for persons with extraordinary ability in the arts or extraordinary achievement in motion pictures or television)
- O-2 Visa (individuals who accompany O-1 artists or athletes to a specific event or performance)
- P-1 Visa (for individual or team athletes, or entertainment group members, to perform at an athletic competition or as an entertainment group member)
- P-2 Visa (for individual or group artists or entertainers, to perform under a reciprocal exchange program between the United States and another country)
- P-3 Visa (for individual or group artists or entertainers, to perform, teach, or coach a folk, cultural, musical, theatrical, or artistic performance, under a program that qualifies as culturally unique or traditionally ethnic)
- Q1 Visa (to receive practical training and employment for sharing history, culture, and traditions of the foreign national’s home country through an international cultural exchange program)
- R-1 Visa (for religious workers to work temporarily and at least part time as a minister or in a religious vocation or occupation and be employed by a non-profit religious organization in the United States.)
Immigrant Visas Employment Sponsorship
Immigrant visa employment sponsorships are generally for persons who want to remain in the United States permanently and who will have the opportunity to obtain U.S. citizenship in the future. Certain immigrant visas require employer sponsorship. For immigrant employment visa sponsorships, the employer must submit a Form I-140, Immigrant Petition for Alien Worker, or an I-360 Petition for Special Immigrant. Most immigrant visa categories also require employers to obtain a labor certification from the DOL before petitioning for a work visa on their behalf, similar to the labor certification described above that verifies that there are not enough available, qualified, and willing U.S. workers to fill the offered position.
The following types of immigrant visas require employer sponsorship:
- EB-1 Visa (professors, researchers, people with extraordinary abilities in arts, science, business, athletics, or education, etc.; you can also self-petition for this visa)
- EB-2 Visa (professionals who have obtained advanced degrees and people with extraordinary abilities in arts, sciences, or business)
- EB-3 Visa (skilled workers with more than two years of experience, professionals with a higher education degree, or unskilled workers)
- EB-4 Visa (certain religious, government, or international organizations workers)
Nonimmigrant and Immigrant Employment Visas without Employer Sponsorship
The United States government grants nonimmigrant visa employment visas to certain applicants without employee sponsorship. The applicant himself must apply for these types of visas themselves (self-petitioning) if they qualify. Hiring an immigration attorney to help prepare these complicated petitions is highly recommended.
The following types of nonimmigrant visas do not require employer sponsorship:
- E-1 Visa (for nationals of a treaty country to be admitted to the United States temporarily solely to engage in international trade on his or her own behalf)
- E-2 Visa (for nationals of a treaty country to be admitted to the United States temporarily when investing a substantial amount of capital in a U.S. business)
- EB-5 Visa (for investors to be admitted to the United States permanently and apply for permanent legal residency if they make the necessary investment in a commercial enterprise in the United States and plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers)
How Long is the Sponsor Visa Valid?
The answer is it depends on the type of sponsor visa you have, although most will expire after a certain time period, so make sure you don’t overstay your visa period.
For example, an H-1B visa, the most commonly used nonimmigrant visa, is valid for three years, with the possibility of extending the visa for up to six years. Other types of sponsor visas are only valid for one year, while other visas can be renewed indefinitely.
Unlike a nonimmigrant work visa, an immigrant work visa is permanent. If you get an employer to sponsor you for an immigrant work visa, you can become a permanent legal resident of the United States. When you get an immigrant work visa, you will obtain a Green Card, which is valid for ten years, with unlimited extensions allowed. Permanent Residents can apply to become U.S. citizens after five years.
How Can I Get a Sponsor Letter?
Obtaining a sponsor letter can take a long time, and it can also be very costly for employers. Usually, an employer will hire an attorney to put together the documents that are collectively referred to as the sponsor letter.
Before obtaining a sponsor letter, an employer must first offer you a job in the United States. The sponsorship documents will often contain the employment contract, a statement describing the employee’s qualifications, etc. The employer will obtain the Labor Certification, and then will submit the sponsor letter and work visa petition to USCIS, which will then process the petition. Because of a high backlog, this can sometimes take months.
The USCIS will notify the employer and employee once they have approved the petition. Once approved, the non-U.S. employee then starts the visa application process at the U.S. embassy or consulate in the country where they live.
How Much Does It Cost?
Obtaining a sponsor letter is expensive. Fees typically range from $4,000 to $9,000, depending on whether the employer has more than fifty employees, with half of those being foreign nationals. The good news for applicants is that the employer/sponsor usually pays the costs. Costs may include the following, depending on the type of visa and the employer’s size:
- $460 for a Form I-129 (Petition for a Nonimmigrant Worker)
- $700 for a Form I-140 (Immigrant Petition for Alien Worker)
- $435 for a Form I-360 (Petition for Special Immigrant)
- $750 to $1,500 for charges under the American Competitiveness and Workforce Improvement Act of 1998
- $500 for the Fraud Prevention and Detection fee
- $4,000 or $4,500 for employers with more than 50 employees, if half of them are foreign nationals
- $305 for Consular Processing based on an approved I-140
- $190 for Consular Processing for Approved H, L, O, P, Q, or R visas
- $205 for Consular Processing based on an I-360 self-petitioners, special immigrant visa application or E Treaty Visa
How Long Does it Take?
In general, non-immigrant visas take less time to apply for than permanent immigrant visas. The lottery based visas like the H1-B can only be filed in one or two times each year for the worker to start 6 months later. However, Labor Certifications themselves can take many months to obtain, so the planning process must start much earlier than the application date. Based on how many applications are filed each year and how many visas are allowed to be issued in each category, waiting times may be months or years for some types of visas. Consult the USCIS Processing Time website for each type of visa and the Service Center where it will be adjudicated. In addition, consular processing may take months or longer depending on the appointment backlog created during the Covid Pandemic when most consulates were closed.
Is it Difficult to Get an Employment Sponsorship?
While it’s not necessarily difficult to obtain a sponsor letter, it can be time-consuming and expensive for the employer. For this reason, some employers don’t offer work sponsorships for foreign nationals. Also, for H-1B visas and H-2B visas, which are the most common type of work visa granted, there is an annual “lottery.” This refers to a random selection process where only a limited number of foreign workers get chosen each year to receive an H-1B or H-2B work visa. Unless an employer considers you an extremely valuable hire, the employee is not likely to open a position indefinitely while waiting for you to be chosen in the lottery.
Our legal team here at Jackson, Landrith & Kulesz, PC have years of experience helping our clients obtain employment sponsored visas. If you have any questions about obtaining an employment sponsored visa, contact us today so that we can help you understand your legal rights in the United States.