Work Authorizations
The Visa Alphabet Soup
It can get pretty confusing with the plethora of visas floating out there. Which ones can we work with? Which ones require sponsorship? Can we treat all EADs the same regardless of origination?
And then there's the legal aspect - how do we even go about figuring out someone's work authorization? What is legal to ask and what isn't? There needs to be a balance between verifying a worker's employment eligibility and not engaging in discrimination. The answer to these lie below.
The Law
There is an anti-discrimination provision of the Immigration and Nationality Act that "prohibits employers from discriminating against U.S. citizens and other work-authorized individuals based on their citizenship status or national origin." Citizenship status can include a person's current or prior immigration status. This protected class includes U.S. Citizens, U.S. nationals, asylees, refugees and recent lawful permanent residents (ie Green Card holders).
So in other words, don't go around asking someone if they are a US Citizen, if they have a Green Card, what is their work authorization, etc. (An exception to this statement is "unless a law, regulation, government contract, or executive order requires the employer to limit the specific position to U.S. citizens. You can get more information about this exception at 8 U.S.C. § 1324b(a)(2)(C)." - Justice.gov)
So... how do we go about figuring out if someone is authorized to work in the US? Always ask these two questions, together.
2) Do you now, or will you in the future, require sponsorship for employment visa status to work legally for our Company in the United States? For example an H1B, L2, H4, OPT, CPT, or O1. If the applicant answers Yes to this question, then follow up with "What is the basis of your current work authorization?" and "When does that work authorization expire?"
1) Are you legally authorized to work in the United States for our Company?
According to the law firm Modrall Sperling, the decision not to hire individuals based solely on their sponsorship needs (either now or in the future) is not considered discrimination. You should always check with your HR/Legal department, but sounds like INA's anti-discrimination provision only prohibits discrimination against US citizens and nationals, green card holders, refugees and asylees. Just make sure your decision to not hire is solely based on the individual's status as a temporary visa holder and nothing else.
Be Vigilant
The reason why we ask the two questions together, is to catch if anyone is currently "authorized to work" but thru a visa. Employment Authorization Document (EADs) via Visas allow the applicant to work only for a specific duration. I've experienced many horror stories where the Recruiter says a candidate is authorized to work in the U.S., only to find out upon onboarding paperwork that they're on a temporary work visa that will expire soon.
For example, say a candidate is on a F1 OPT and only has 7 months left on their STEM extension. Are they able to work? Yes, but only for another 7 months. If the company wants to retain the candidate as an employee beyond the 7 months, they will have to sponsor a H1B. If the H1B is approved, then the worker can continue employment, but employment needs to stop if the H1B is denied. Worst yet, let's say the candidate's EAD expires before April 1st (H1B application date) - now even if their H1B is approved, they cannot work until their H1B is active (Oct 1). What is the company going to do with an individual that's not authorized to work for at least 6 months? What about the role that this person was performing? Now the company will have to find a temporary employee to fill in the gap. This causes a lot of unnecessary costs, uncertainty and disruption.
Visa Alphabet Soup
Ok, now that we've got the legal aspect out of the way let's get to the fun part - decluttering the crazy world of Visas.
Below is a list of popular terms that we will be referencing. Having an understanding of these terms will help decipher all the other acronyms.
And then last but not least, a list of the most popular visas.
Key Terms and Forms
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LCA (Labor Condition Application): This is done by the employer by either filing the form ETA-9035 or via DOL's online system (iCERT) with ETA-9035E. It asks for company information, candidate information, details about position (responsibilities, educational requirements, location, etc.), salary information, prevailing wage and a few other pieces of info. If the employer has filed an LCA before via iCERT, then it should only take about 7 working days. If this is their first time, it may take an additional 5 days to verify their Federal Employer Identification Number (FEIN).
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Premium Processing: This is an optional expedited service for folks that are filing Forms I-129 and I-140. Within 15 days, USCIS will issue one of the following responses: approval notice, denial notice, a notice of intent to deny, request for evidence (RFE), or open an investigation for fraud. If there is an RFE or the petitioner submitted a response to a notice of intent to deny, then the 15 days reset. If they do not respond within 15 days, expedited fees will be returned but they still treat it as an expedited service. Many types of visas can use this expedited service, but because of the sheer volume of H1B applications, USCIS caps the number of Premium Processing allowed for H1B. Cost increased to $1,410 in Oct 1, 2018.
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Prevailing Wage: This is the wage an average person should be compensated based on the location, skillset, education and experience level. The employer must pay this worker at or above this prevailing wage (this is a good resource to guesstimate what a prevailing wage looks like). Uncle Sam does this to protect U.S. workers by making sure employers don't exploit foreigners by paying them less than what an average U.S worker will get paid. Without this clause, employers will have an incentive to hire cheap foreign labor, which in turn displaces U.S. workers.
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Form I-129, Petition for a Nonimmigrant Worker: This is a form submitted to USCIS by the employer to either file for a new status or change of status (such as new, continuing or changed employer or title) or to amend the original application. Approval of this form let's the worker start/continue work. If they are outside of the U.S., then it's used to submit a visa application.
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Form I-140, Immigration Petition: This is part of the Green Card filling process. Once an I-140 is approved, they will get a Priority Date which is just a number in line. Once the USCIS calls on this number, then they can finish the GC process. Until then, it's just a hurry up and wait scenario.
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USCIS: United States Citizenship and Immigration Services. This is an agency of the U.S. Department of Homeland Security that administers the country's naturalization and immigration system.
List of Popular Visas
[ EAD ] EMPLOYMENT AUTHORIZATION DOCUMENTATION
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Details: This isn't a Visa, but it's so important we talk about it that I'm going to list it here. An EAD is a temporary work permit issued by the USCIS. Currently there are over 40 immigration status that allows you to obtain an EAD. Here's my warning --> just because they have an EAD now does not mean they will have one in the future. This is the reason why we ask the two questions above to qualify the work authorization of a candidate.
I've found that even when you ask candidates those questions, they may just say "I have an EAD." A response like that should trigger a huge alarm in your head. Just like my initial example, what if they obtained an EAD from their F1 OPT that only has a few months left. Just by telling you they have an EAD hides that detail and will leave you in a bind.
But because of anti-discrimination laws, you can't just ask "Where did you get your EAD from?" since they may be a protected class like an Asylee. The key is to ask the 2nd question, it will help clear up if this EAD is from a Visa or some other method.
[ F-1 ] STUDENT VISA + CPT/OPT
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Details: This is a nonimmigrant visa for those that wants to study in the U.S. An F-1 visa does not allow them to work unless they work on-campus, apply for a CPT EAD or an OPT EAD.
- Process/Wait Period: Students don't need to have a job lined up to apply for a CPT/OPT EAD. It can take up to 90 days to process. Cannot start work until they receive the actual EAD.
On-Campus Employment - They do not require USCIS approval and can freely work any jobs on-campus.
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Restrictions: They are free to work up to 20 hours per week while school is in session. You can work full-time on campus during holidays and vacation periods. So if you see employment at their school, it most likely isn't using any CPT or OPT time.
Curricular Practical Training (CPT) - This is off campus work and is meant for alternative work/study, internships or co-ops. It must be part of an established curriculum, and if not, then it needs to provide course credit.
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Duration: There is no limit on how long a student can be on CPT. It can be part-time (20 hours or less a week) or full time (20 hours or more a week). However, student's who engage in 12 months or more of full time CPT are not eligible for OPT.
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Cap-Gap: CPT does not benefit from the H1B cap-gap rule. If your CPT expires prior to July 1st (you have a 60 day grace period), you will have to leave the U.S. until Oct 1st.
Optional Practical Training (OPT) - This is off campus work and can be done both during and after they graduate. They will need to apply for their OPT EAD.
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Duration: 12 months full time in total. This means if you worked part-time while still in school, it will be reduced by half. For instance, let's say they worked 6 months of part time, it will be counted as 3 months of full time, which means they have 9 months left on their OPT.
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STEM Extension: If the student's major is STEM based (Science, Technology, Engineering, Medicine), then they can extend for another 2 years. If a student is on STEM extension, the employer has to fill out Form I-983 (Training Plan) and submit it to the student's international student advisor. According to the latest update on August 17, 2018, USCIS says the training experience can be at a site other than the employer's principal place of business as long as all of the training obligations are met. However, the person training the student must be the employer's staff/consultant. They cannot be the employer's customer's staff/consultant. To clarify, if you are working for a staffing firm, you can have your candidate work at your client's site - but you need to have employees/consultants onsite to do the training. You cannot have your client's employee/consultants train them. So a solutions firm that has employee at a client can employ STEM OPT. A traditional staffing agency that does not have onsite presence cannot.
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Cap-Gap:
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If the student applies for an H1B on April 1st while their OPT is in effect, they can continue working until they receive a response from USCIS about their H1B application. If their H1B is approved, then they just keep working until Oct 1st, at which time they switch over to the new H1B. However, if their application is rejected, then they have 60 days grace period from the rejection date before their OPT EAD is terminated.
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If the student applies for an H1B on April 1st and their F1 or OPT has expired but still within the 60 day grace period, then the student will receive the automatic extension of his/her F-1 status, but cannot work since the student wasn't authorized to work at the time the H1B was filed. If the H1B is approved, then they can stay in the U.S. until Oct 1st, at which time they can start working under the H1B. However, if their application was rejected, then they have 60 days grace period from the rejection date before their F1 is terminated.
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Restrictions: Students who has engaged 12 months or more of full time CPT are not eligible for OPT.
[ H-1B ] SPECIALTY OCCUPATION WORK VISA
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Details: This visa allows U.S. employers to temporarily hire foreign workers. There is a limit on how many new H1B visas are issued each year. Application of new H1B starts on April 1st, and if approved, becomes valid on Oct 1st. A candidate on H1B may join a new employer as long as they transfer that visa to the new employer.
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Work Authorization: They can work as long as their H1B is valid.
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Duration: 3 years. Can extend for another 3 years. If the visa holder has an approved I-140, then they can extend every 3 years until their Green Card is approved. If they do not qualify for extension beyond 6 years (i.e. applying for GC), then they have to U.S. for one year before reapplying for another H1B.
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Costs: ~5k, up/down depending on lawyer fees. Applicant can elect to file as premium processing, which will cost more (the fee was increased from $1,225 to $1,410 in Oct 2018).
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New H1B: An employer may apply for a new H1B on April 1st, and if approved, then the applicant can start working via the H1B on Oct 1st. If there is any gap between the applicant's existing work authorization end date and the new H1B start date, then a Cap-Gap will allow the applicant to continue working under the existing work authorization until Oct 1st, at which time they will switch to a H1B.
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H1B Transfer Process/Wait Period: The new employer will need to file an LCA which will take ~ 1 to 2 weeks. After the LCA is approved, your employer will then send the petition package back to USCIS which in turn takes about 6 months to process. The applicant can start work once the LCA is filed and USCIS issues a receipt to the new employer.
[ H-4 ] DEPENDENT VISA
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Details: This visa is issued to dependent family members (spouse and children) of H1 visa holders. H4 are not eligible to get a Social Security Number and CANNOT be employed.
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Work Authorization: In May 2015, DHS allowed H4s to apply for an EAD if their H1 counterpart has an approved I-140.
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Caution: However, DHS has started the process of "Removing H-4 Dependent Spouses From the Classes of Aliens Eligible for Employment Authorization" as part of their Spring 2019 Regulatory Agenda. There is an ongoing court battle between Save Jobs USA vs DHS on this issue. Employing H4s are very dicey right now and many lawyers recommended H4s start initiating a H1B of their own.
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Duration: H4s can stay as long as the primary H1 is valid.
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Costs: There is zero cost associated with hiring a H4.
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Process/Wait Period: The H4's EAD does not need to be transferred to an employer, however they cannot work until the EAD is approved and the valid card is in their hands.
[ L-1 ] INTRACOMPANY TRANSFER
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Details: L-1 visa is a non-immigrant visa. It allows a US company to transfer an employee from one of its offices in another country into the United States.
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Work Authorization: Holders of L1 CANNOT work for another company other than the one that sponsored them.
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Duration: Only lasts for a short duration - from 3 months to 5 years. Max is 7 years.
[ L-2 ] DEPENDENT VISA
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Details: This visa is issued to dependent family members (spouse and minor children) of L1 visa holders. They can work, go to school and change apply to other types of visas like H1B.
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Work Authorization: USCIS allows them to work so they are not forced to forego their careers while accompanying the L1. They can work at whatever job they want in whatever capacity.
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Duration: L2s can stay as long as the primary L1 is valid. EADs lasts 2 years at a time.
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Process/Wait Period/Cost: There is zero cost associated with hiring a L2. They can work as long as their EAD is filed with USCIS and is approved.
[ TN ] FREE TRADE VISA - CANADA and MEXICO
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Details: This nonimmigrant visa is granted under the North American Free Trade Agreement (NAFTA). It allows qualified Canadian and Mexican citizens to work temporarily in the U.S. if their professions qualifies under the regulations (e.g accountants, engineers, lawyers, pharmacists, scientists, teachers). Spouse and minor children of a TN are not authorized to work, but can go to school.
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Work Authorization: They can work as long as their TN is valid.
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Duration: Initial period of stay is 3 years. You can extend by seeking an extension of stay or leaving the U.S. and then go thru the CBP as if it's a new application.
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Costs: nothing for Canadian. For Mexicans they have to pay the Visa Application Fee
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Process/Wait Period: Two ways to apply, either via your employer to USCIS using Form I-129, or by yourself at the CBP. No waiting period for Canadians. Mexicans need to get their Visa, so lag time depends on how soon you can get an appointment.
Differences Canada vs Mexico:
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Canadians are not required to apply for a TN visa at a U.S. consulate. All they need to do is provide certain docs at the time they seek admission to the US via a U.S. Customs and Border Protection officer at certain CBP-designated U.S ports of entry. Docs include Canadian citizenship, letter from employer detailing items such as the capacity in which you'll work in the US, the purpose of employment, length of stay, educational qualifications and credentials.
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Mexicans are required to obtain a visa to enter. Apply for a TN visa at a U.S. embassy or consulate in Mexico. Once the applicant is approved for a TN visa, then they can apply for admission at certain CBP-designated U.S. ports of entry.
[ H-1B1 ] FREE TRADE VISA - CHILE and SINGAPORE
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Details: This nonimmigrant visa was created under the Free Trade Agreement w/ Chile and Singapore back in 2003. Chileans and Singaporeans can apply directly at a U.S. consulate. Spouse and minor children of an H1B1 are not authorized to work, but can go to school.
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Work Authorization: They can work as long as their H1B is valid.
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Caution: H1B1 are not considered dual intent visas. In most cases, if a person applies for a GC under H1B1, they will lose their H1B1.
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Duration: Valid for 18 months but can only be admitted for a 1 year period. It can be renewed indefinitely (1 year at a time) as long as they can show they don't have plans to stay in the U.S. permanently. LCA needs to be renewed every 2 years.
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Costs: If you apply via USCIS, it's the same costs as an H1B (except they waive the $500 fraud fee). If they apply directly themselves via Consular Processing, they pay $190 as part of the DS-160 processing fee.
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Self Application: Get a signed LCA from your employer, submit and pay for Visa application (DS-160) online, and bring the confirmation and fee receipt to the interview. Bring a letter of employment specifying the details of the temp position (JD, salary, benefits, duration, description of employing company, qualifications of the applicant, etc.). Bring supporting docs like degrees. Need valid passport.
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Process/Wait Period: Unlike an H1B that needs to wait for April 1st to apply for a new Visa, H1B1 can start working as soon as their petitions (I-129 or consular processing) are approved. However, they cannot start working until petition is approved. If they go thru the USCIS route, it takes about 2-4 months. If they go to a US Embassy outside of the USA, it takes about 2-3 weeks (recommend to go to one in their own country).
[ E-3] FREE TRADE VISA - AUSTRALIA
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Details: This nonimmigrant visa is granted under the Australia-United States Free Trade Agreement (AUSFTA) in 2005. Spouses of E3 are called E3-D and can work w.o any restrictions.
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Work Authorization: They can work as long as their E-3 is valid.
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Duration: 2 year increments, can be renewed indefinitely.
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Costs: E3 visa fees cost $270. There is no fee for LCA and USCIS/AWCIA fees are eliminated. No premium processing option. There are other fees like visa issuance fee, consular application fee and if you are bringing dependents it will cost more, especially if they want to work. Total cost ~$1k. Attorney fees will be on top of that.
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Process/Wait Period: An employer must first apply for a LCA with the DOL. After the LCA is approved, the Australian citizen will then apply for the actual visa at a US consulate and then enter the U.S. For change of employers within the U.S., the new employer will have to file a new LCA (lead time is about 1-2 weeks) and a new E-3 Visa application. If you process the E3 visa application within the U.S., it will take about 2-3 months. If you apply for an E3 at a U.S. consulate, this timeframe is dependent on how soon you can get a date for an interview (should should be much faster than going the U.S. route). I suggest the applicant do it outside of the U.S.
[ O-1 ] EXTRAORDINARY ABILITY
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Details: This is a non-resident visa for people who have demonstrated extraordinary ability in their field (arts, sports, business, education, sciences). Dependents are called O-3 visas, and they cannot work but can go to school. USCIS provides a list of requirements for this type of visa.
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Work Authorization:
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Duration: Up to 3 years, but if it's to cover a specific event, production activity, then it could be less. Extensions are in 1 year increments.
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Interesting Tidbit: Typically a O-1 can start a self sponsored GC process if they wanted to (E11/E21). Or they can transfer to an employment based sponsorship (EB-1) by filling out the form I-140. The U.S. wants to retain these extraordinary people, so there is huge flexibility and approval rate for these types of folks.
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Process/Wait Period/Cost: The applicant cannot start employment until the petition is approved. It starts with filing I-129 and include your contract, itineraries, evidence of your extraordinary ability, but then also requires a written advisory opinion on why this person is so special, the contract, Itineraries and a list of other items. O-1 are meant to be short-term work visas, so if they want to change employers, then they need to apply for a new O-1 Visa and follow the same steps above. The processing time could take 1-3 months, but for an additional fee of $1,410, can be reduced to 15 days via Premium Processing. Because of the complexity of these cases, expect lawyer fees to be around 3-4k.