Hiring Foreign Nationals
Purpose of Process:
In our new global economy, some of the top candidates for key positions may be foreign nationals. This process provides guidance on hiring foreign nationals while maintaining regulatory compliance.
Recommended Steps in the Process:
- Familiarize yourself with the issues involved in hiring
foreign nationals, including:
- Description of nonimmigrant visa classifications under which employment is authorized
- Description of nonimmigrant visa classifications under which employment is not authorized
- Description of immigrant visas (permanent resident status)
- Description of asylum applicants and refugees
- Export Controls
- Perform the normal
interview process. If the best candidate is a foreign
national, continue with this process.
- Have the Contracts department or Legal staffs determine if
there is a requirement for export control on the product(s) in
which the foreign national would be assigned. To make this
determination, the hiring manager must provide a detailed
description of the product on which the employee will work.
Obtaining an export license may take several months.
- Extend the standard offer letter,
which is conditioned on the candidate being able to demonstrate
that he/she has permission to work in the U.S. If a work visa
cannot be obtained for/by the non-immigrant candidate, then the
offer of employment is void. If the type of visa requires
company sponsorship, include a statement in the offer letter
that the company will support the visa application process.
- Select the appropriate visa to use. The following are processes for obtaining the most common visas. They are listed in the order according to ease of administration (easy to difficult):
The F-1 student visa should be used whenever applicable. The visa requires no work on the part of the company. The foreign student simply obtains permission to work from their student adviser. Most foreign students will have done this by the time they start interviewing. So they can begin working immediately.
If a decision is subsequently made to extend the employee's stay beyond one year, begin the process of converting the candidate to an H1-B visa.
This visa was created as part of NAFTA (North American Free Trade Agreement) and is appropriate to most professional workers from Canada and Mexico. With Canadians, the company may choose to offer to fly the candidate to Canada to re-enter the U.S. with a valid visa.
Application Procedure for Citizens of Canada under NAFTA
Application is made at a Class-A port of entry or at a U.S. pre-clearance/pre-flight station
A visa is not required.
The applicant must provide documentation of the following:
- Proof of Canadian citizenship
- The proposed U.S. employer
- The professional business activity in which the applicant will be engaged
- The anticipated length of stay
- The educational qualifications and/or credentials which demonstrate that the applicant has professional level status
- Compliance of the applicant with any applicable state laws and/or licensing requirements for the professional business activity
- The arrangements for remuneration for services
Applicant will be granted one-year work/stay authorization
Applicant will be issued "multiple entry" I-94.
Dependents will be granted "TD" status, and employment is NOT authorized.
Processing times vary, but the average time is about one hour.
Application Procedure for Citizens of Mexico under NAFTA
The petition for the non-immigrant worker is filed with the Northern Service Center together with:
- Labor condition application filed with and certified by the Department of Labor
- Evidence that the beneficiary meets the minimum education requirements
- Statement from the prospective employer in U.S. setting forth the professional nature of position with a full description of duties, salary, etc.
Upon approval, petition will be valid for one year;
Applicant applies for visa to enter the U.S. for TN-1 visa;
Upon entry, applicant will be granted "multiple entry" I-94;
Dependents will be granted TD status, and employment is NOT authorized.
This visa has the longest lead-time (4 to 8 weeks). The candidate cannot begin work until after the visa has been approved. However, if the candidate already holds an H-1B visa, they can begin the job as soon as the new H-1B petition has been filed. After receiving acceptance of the conditional offer, contact legal staff (typically outside attorneys) to begin the H1-B visa process immediately. This process requires that the manager complete questionnaires (Employer's H1-B Nonimmigrant Visa Checklist, and Employee/Applicant's H1-B Nonimmigrant Visa Checklist) describing the prospective employee's job.
- Upon approval of the visa, the employee can attend orientation and begin work.
- Monitor the employees' visa expiration date to allow sufficient lead-time (generally six months) to process extensions or subsequent visa applications.
- Transfer activity should be closely monitored to ensure continued compliance with Export Administration Regulations (EAR).
- The company may sponsor the employee for a Permanent Immigrant Visa. Typically, outside legal assistance will be required.
The company should retain a good immigration attorney to help support this process. Immigration forms are available on the Internet at this address: http://www.uscis.gov and Labor Certification forms and information are available at this address: http://www.foreignlaborcert.doleta.gov/form.cfm