Sponsorship For Employment: The Process, Visa Types & Employer Responsibilities

Sponsorship For Employment: Key Points

• Sponsoring a foreign national for employment in the United States covers several key steps, including role evaluation, verifying employee qualifications, getting a PERM certification, filing a petition and waiting for a visa to be issued
• You can sponsor foreign workers for temporary or permanent jobs in the United States
• You must maintain compliance and keep workers’ immigration records during (and for a certain time, after) the employment period

With only 63% of working-age Americans participating in the labor force, finding qualified candidates locally seems like a challenge.

Are you a business owner looking to bring foreign employees to the United States for a temporary or permanent job? You can do your part by sponsoring them for employment.

This guide breaks down:

• How sponsorship for employment works
• The types of visas you can use to engage foreign workers
• Your obligations and requirements
• How an immigration law firm can help

How Sponsorship For Employment Works

Sponsorship for employment means you commit to support the foreign worker throughout the immigration process. This commitment covers a few key steps.

1. Role Evaluation

The first step in the process is to define the position’s job requirements. The role must:

• Be real (a bona fide job vacancy)
• Require skills or qualifications that are difficult to find in the U.S.
• Match one of the employment categories eligible for a U.S. work visa

Let’s say you’re managing a tech company in New Jersey and you’re looking for a software engineer with specialized experience in machine learning.

If you cannot find employees for the job locally, you might consider bringing in talent from abroad.

2. Candidate Qualification

Then, you must ensure that the foreign worker you want to sponsor meets the qualifications for the job. In most cases, this means verifying the following candidate details:

• Education
• Licenses and professional certifications
• Work experience
• Language skills, if needed for the job

For example, to be eligible for an H-1B visa, a financial analyst may be required to hold a master’s in economics or finance.

3. Labor Market Test/PERM

For permanent employment-based visas like EB-2 and EB-3, you must get a Permanent Labor Certification (PERM).

The purpose is to prove there are no qualified U.S. employees to take the position.

To do this, you must:

• Advertise the job in various communication channels, such as newspapers, state job boards, or online publications.
• Interview qualified candidates.
• Document the recruitment process.

4. Filing Your Visa Petition With USCIS

Only if you’ve established there are no U.S. candidates for the job, then file a petition with the U.S. Citizenship and Immigration Services (USCIS).

The petition confirms you intend to sponsor a foreign employee for a visa and indicates the foreign employee’s qualifications, job duties, and offered wage.

• For temporary (nonimmigrant) workers, file Form I-129, Petition for a Nonimmigrant Worker.
• For permanent (immigrant) workers, file Form I-140, Immigrant Petition for Alien Workers.

5. Waiting For USCIS Decision

Once you file the petition, USCIS will review the case and decide on it or request additional evidence.

If you want to accelerate the review process, you can pay for premium processing, which ensures a decision within 15 days.

The time USCIS takes to review a case varies depending on the type of visa petition you file for the foreign employee.

For example,

• An H-1B visa takes an average of six months.
• An E21 visa for employees with advanced degrees or exceptional knowledge takes between seven and ten months.

6. Visa Issuance

What happens when the USCIS approves your petition? In most cases since the employee resides outside the U.S., they must apply for a visa through their U.S. Embassy or Consulate.

To achieve this, they need to:

• Fill out Form DS-160 for nonimmigrant visas or DS-260 for immigrant visas.
• Schedule and attend a visa interview.
• Provide biometrics.

If their visa application is approved, they will receive a visa stamp in their passport and may travel to the U.S. to commence employment.

7. Ongoing Compliance

So, your new employee has received a visa and is already in the U.S. Does this mean your obligations as a sponsoring employer are over? Certainly not. Throughout the worker’s employment, you must:

• Pay the prevailing wage.
• Ensure the job duties match the original petition.
• Inform USCIS about significant changes like termination, job role, and location.
• Comply with Department of Labor audits.

Ongoing compliance will protect you against fines and debarment from sponsoring future workers.

Types Of Employment-Based Visas

The need for foreign workers remains evident. In 2023 alone, USCIS received 144,834 Form I-129 petitions for nonimmigrant workers and 76,537 Form I-140 petitions for immigrant work visas.

As an employer, you can sponsor workers for temporary (nonimmigrant) or permanent (immigrant) work visas.

Nonimmigrant Visas

Temporary employment-based visas allow you to bring foreign nationals to the U.S. for a limited time. The most common ones include:

• H-1B visas for roles that require at least a bachelor’s degree or equivalent in a specialized field; for example, in IT, finance, or engineering.
• L-1 visas for employees moving from an overseas office to a U.S. branch as executives, managers, or experts with specialized knowledge.
• H-2B visas for temporary or seasonal jobs where there are not enough U.S. workers; for example, work in agriculture or seasonal workers for a ski resort during the winter.

Immigrant Visas

Permanent employment-based visas allow foreign employees to live and work in the U.S. indefinitely and pursue a Green Card, bringing several benefits.

The immigrant visas are grouped into preference categories, such as:

• EB-1 is the First Preference category for individuals with extraordinary ability, outstanding professors/researchers, or multinational executives.
• EB-2, the Second Preference category, is for professionals with advanced degrees or exceptional ability in the sciences, arts, or business.
• EB-3 is the Third Preference category for skilled workers, professionals, and unskilled workers meeting eligibility requirements.

Employer Requirements & Responsibilities

Being a sponsoring employer comes with certain responsibilities and requirements.

Financial Obligations

• You must cover the filing fees for the visa and Green Card petitions.
• You must pay the prevailing wage for the role in the geographic region, as per the Department of Labor (DOL) requirements.
• You must pay for legal services if you’re using an immigration attorney to bring the employee to the U.S.
• If you choose to speed up the petition review process, you must pay for premium processing.

Recordkeeping & Reporting

Throughout the foreign national’s employment, you must:

• Keep a file with the Labor Condition Application (LCA), prevailing wage documentation, and proof of notice to employees.
• Form I-9, showing that every one of your employees is authorized to work in the U.S.
• Notify USCIS in case of changes to the employee’s position, termination, salary, or relocation.
• Keep immigration documents for at least one year after employment termination or three years from the date of hire, whichever is later.

Sponsorship For Employment: Key Takeaways

• Employment sponsorship allows U.S. businesses to hire skilled international talent.
• The process includes several stages, from defining the job and verifying the candidate’s skills to filing a petition with USCIS and waiting for visa issuance.
• Employers have an ongoing obligation to stay compliant with DOL requirements and keep immigration records as long as (and for a certain period after) the employee works for them.
• To avoid costly mistakes and ensure everything is done right, it’s best to work with immigration professionals.

Need Help With Employment Sponsorship? Talk To Spar & Bernstein

Are you looking to hire foreign employees for temporary or permanent roles but not sure where to start?

As a trusted legal partner for individuals and businesses, Spar & Bernstein can support you throughout the process by:

• Determining employer and worker eligibility under nonimmigrant or immigrant visa categories.
• Handling the PERM labor certification process if needed for the role.
• Preparing and filing petitions on your behalf.
• Managing premium processing requests to expedite USCIS decisions where possible.
• Ensuring you are compliant with the prevailing wage and other Department of Labor requirements.
• Advising on changes that must be reported to USCIS.
• Helping your employee with consular processing, including visa interview preparation and DS-160/DS-260 completion.
• Providing legal advice on immigration planning for the management team and the HR department.

Sponsorship For Employment: FAQs

If you need additional information about employment sponsorship, take a look at these answers to a few common questions.

What is employment sponsorship?

Employment sponsorship is the process where a U.S. employer petitions the government to allow them to bring a non-citizen to work legally in the U.S.

Can a small business sponsor a foreign worker?

Yes, small businesses can sponsor workers if they meet USCIS and DOL requirements, such as proving they can pay the offered wage and that the role is legitimate.

Because you might need financial documentation to confirm your ability to sponsor, consider working with experienced immigration lawyers like our team at Spar & Bernstein.

What happens if the employment ends before the visa expires?

If the foreign worker is terminated or leaves the job, their visa status typically loses its validity and they have a grace period to find a new employer or leave the U.S.

The sponsoring employer must notify USCIS about the termination.