By Milton Herman
The internet company, Backrub, began in the dorm rooms of Stanford in 1995. By 1998, the first investment dropped for $100,000. Over the next few decades, the company went from a garage to a “Googleplex” and hired more than 60,000 employees in 50 different countries.
There are many reasons behind Google’s colossal rise. And their story is similar to a handful of other tech giants who have accomplished digital domination. One prominent reason? They only hire the best. Hiring the best requires finding the right candidate no matter where they are on the globe. In America, this involves paperwork and government red tape to stay within the law. It’s all worth it if the employee has a meaningful impact on your organization. Here’s what you need to know about sponsoring a foreign job candidate.
Key Terms
The United States Department of Labor Employment and Training Administration (DOLETA) and United States Citizenship and Immigration Services (USCIS) use codes to represent immigrant statuses. The most common are:
- EB-1 – Priority Workers, those with “extraordinary ability” in the sciences, arts, education, business or athletics. This could be corporate executives or PhD scientists.
- EB-2 – Similar to EB-1, but broadened to include those with anything above a bachelor’s degree.
- EB-3 – Those with a college degree whose jobs require a minimum of two years training or work experience.
- EB-4 – Those considered “special immigrants” who are religious workers, former employees of certain governments and more.
- H-1B – Those who work in a specialty occupation. This includes the software engineers at tech companies like Google and Microsoft.
- H-2A – Those performing temporary or seasonal agricultural work.
- H-2B – Those performing temporary or seasonal non-agricultural work.
There dozens of other visa types and immigration statuses, ranging from “P” for athletes or performers to “U” for victims of human trafficking. The Bureau of Consular Affairs has a helpful directory available.
Steps
Submit the Labor Condition Application (LCA)
This form is completed on behalf of the worker and is a request to move them out of their current immigration status. The document is submitted to the DOLETA. It requires information about the wage environment (co-worker wages and wages in the geographical area) and working conditions. There must not be a current work stoppage and the employee must be notified and provided a copy of the document.
Note: Knowingly fabricating information on this document can result in a $10,000 fine and prison time.
File Form I-140 (Immigrant Petition for Alien Worker)
This form is used for EB-1, EB-2 and EB-3 workers. Specialty forms are available for EB-4 and EB-5. This form requires evidence that there is not enough U.S. workers to fill the position. There’s $700 filing fee to submit the six page form. DOLETA approves or rejects this petition. The approval rate for EB-2 and EB-3 statuses ranged from 47 percent to 62 percent from 2005-2010. Meanwhile, researchers or professors filed an EB-1, had a 90 to 95 percent approval rating.
DOLETA does not provide a timetable for approval or a timeline for when a sponsored employee can lawfully migrate. After the sponsorship is approved, the employee can begin the process of obtaining a green card for permanent residency.
Considerations
Legislation passed in 1998 added the possibility of an employee being classified as a H-1B-dependent employer. This means the company has:
- 25 or fewer full-time equivalent employees and at least eight H-1B nonimmigrant workers; or
- 26-50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or
- 51 or more full-time equivalent employees of whom 15 percent or more are H-1B
nonimmigrant workers.
Employees who make more than $60,000 annually or have a master’s degree are exempt. This status brings additional government scrutiny and may lead to penalties if the company is not making an effort to bring in American workers.
Another wrinkle in the law is that H-1B recipients must have an employee/employer relationship. That can be tricky for startups where the immigrant involved is the co-founder or at the executive level and has the power to hire and fire. Startups must provide proof that a board of directors or another entity has control over the immigrant’s employment (i.e. can fire them).
As a former journalist, Milton Herman loves a good story. As customer success manager, he develops compelling customer narratives. He’s also a content strategist, writer and Slack evangelist. He’s passionate about sports, travel and learning. Follow him on Twitter. @MiltonDHerman
