The world of technology is competitive and ever-changing. As a business, you want the best and brightest IT talent on your side. Not only do IT experts keep your systems safe, but they can come up with groundbreaking solutions and innovations for your company. Talented IT professionals can be found all around the world. The question then becomes how do U.S.-based companies hire these international experts?
In this article, we delve into the different types of work visas available and steps on how to sponsor an immigrant for a U.S. work visa. If you want to sponsor software engineers and other IT professionals for U.S. work, you need to be aware of the different immigration avenues and legal issues. We cover this topic from start to finish, so you’ll be well-equipped with the knowledge you need.
Employment-Based Nonimmigrant (Temporary) Visa Categories:
H-1B – Specialty Occupation
The H-1B visa is a cornerstone of U.S. immigration options for many foreign IT professionals. This visa is custom-made for people engaged in work that requires highly specialized knowledge. They must have at least a bachelor’s degree in a related field.
The H-1B is your go-to option when hiring software engineers and database developers. However, this visa category does come with its challenges. As the primary professional visa for all foreign workers in the U.S., there are many nuances and evolving regulations you need to be aware of. This requires careful consideration and consultation with immigration experts like SuperVisas.
TN – Mexican and Canadian Professionals
The TN visa opens doors for our friends from Canada and Mexico. The TN is similar to the H-1B, except that it’s limited to only certain professions such as Computer Systems Analysts, Engineers, Statisticians, and Mathematicians. Unlike the H-1B, TN visas come with more flexibility. Your workers receive approval to work in the U.S. for three years at a time. There’s also no fixed limit on how many years they can work in the U.S. as long as they have a viable job offer, making it a great option for your business. It’s a particularly attractive option for candidates from Canada and Mexico due to its swift application process. Canadians can apply right at the airport or land border, and Mexicans can apply directly at their nearest U.S. Consulate.
L-1 Visa – Intracompany Transfer
If you are a multinational company, then the L-1 visa is a great way to transfer your IT professionals from your location abroad to your U.S.-based location. It’s meant for those professionals who have specialized knowledge, senior managerial roles, or executive roles at the company and who have been in that role for at least 12 months within the last three years. The L-1 visa lets you bring your workers to the U.S. and transfer them to a related company role. bringing their special knowledge or management experience. This visa is pretty versatile and perfect for IT pros with unique skills or those stepping into managerial roles. Another advantage to the L-1 is that it can fast-track some to getting a green card as a multinational manager.
E-3 – Australian Professional
If you want to hire IT professionals from Australia, the E-3 visa is a good alternative to the H-1B. Australian citizens who meet the criteria for H-1B visas, including Software Engineers and those in similar IT roles, can choose to pursue E-3 status. though it is used less frequently. The E-3 does have a 10,500 limit, but it’s never been hit, allowing Australians to skip the H-1B lottery process. The E-3 visa is great to consider when looking to hire Australian professionals. especially since eligible candidates can apply for the E-3 visa directly at the U.S. consulate.
H-1B1 – Chile and Singapore Professionals
Similar to the E-3, which is allowed only for Australian citizens, Chilean and Singaporean citizens who meet the H-1B standards described earlier have access to H-1B1 status. Chilean and Singaporean citizens with job offers from U.S. companies can apply directly at the U.S. consulate and can avoid the lengthy USCIS (United States Citizenship and Immigration Services) processing times.
O-1 – Extraordinary Ability
The O-1 visa is a unique option in the immigration landscape since it’s reserved for individuals with “Extraordinary Ability or Achievement.” To qualify, candidates must provide evidence of outstanding achievements or recognition in their field. While this may not be your typical choice when hiring IT workers, it can be considered with significant international acclaim in the IT sector. It’s also a great option for those IT professionals in start-up companies who have something special to offer.
F-1 – Students
The last type of visa we’ll discuss is for our foreign students studying in the U.S. under the F-1 visa. F-1 visa students are limited in the type of work they can do, so you’ll want to be aware of those limitations if you’re interested in hiring them. Luckily, STEM (Science, Technology, Engineering, and Mathematics) students can get help from their schools to be eligible for Optional Practical Training (OPT).
This can grant them extra work authorization, which could stretch up to 24 months in some cases. If your business wants to get this STEM extension for the student, you need to be part of E-Verify and create a detailed training plan. This is a great way for new graduates to showcase their talents to companies and transition to another visa category.
Steps to Permanent Residency (Green Card):
In the world of visas, many options are temporary and designed for a limited stay in the U.S. But what if you want to keep your foreign IT professionals around for the long haul? Well, that’s where the “green card” process comes into play. It’s a journey that demands careful planning, especially for employees from countries like India or China, where wait times can be lengthy.
The process for sponsoring a worker for a green card can be broken down into 3 steps:
Step 1: Complete the PERM Labor Certification
First, there’s the PERM labor certification process. Here, employers need to roll up their sleeves and actively search for potential U.S. candidates to fill the job. You must verify there are not sufficient U.S. workers willing, able, or qualified for the position. You must also prove you’re offering a fair wage for the role in the specific location. This step comes with strict rules and can take some time.
Step 2: File the I-140 Immigrant Visa Petition
Once the PERM labor certification is successfully completed, you must file an I-140 immigrant visa petition. This step checks if the foreign employee meets all the job requirements and if the employer can provide the necessary salary.
Step 3: File the I-485 Adjustment of Status Application
After getting the approval on the I-140 petition, both you and the worker must wait for a green card quota number. Wait time varies depending on what country the foreign professional is from, ranging anywhere from a few months to several years. The quota number becomes available based on your “priority date,” or place in line. Once available, the foreign national and their immediate family can file I-485 adjustment of status forms. Once approved, permanent resident status is granted, and the coveted green cards are issued.
This path might seem complex, but with the right guidance, you can successfully navigate it and secure permanent residency for your valued IT professionals.
Exploring Alternative Green Card Categories
Most green cards require employers to complete the PERM process. However, there are a few ways the right candidate can skip the PERM process or even sponsor themselves for their own green card without the help of a U.S. employer. Software Engineers and Developers with special skills or experience may find this a great way to speed up lengthy wait times for green cards. As an employer, you’ll want to be aware of these alternative paths. These categories include:
Similar to the L-1A for senior managers and executives, IT professionals who have worked abroad in executive or managerial roles for at least one of the past three years may qualify for this category. It’s best for high-level IT managers and those currently working in the U.S. in L-1A status.
Outstanding Professor or Researcher
Candidates must demonstrate international recognition for outstanding achievements in a specific academic field. This category may be an option for those with substantial teaching or research experience entering tenured or tenure-track positions.
For IT professionals with significant international recognition in the sciences, arts, education, business, or athletics, the EB-1A Extraordinary Ability category may be worth considering. It requires extensive documentation of their achievements and is under scrutiny by USCIS. The applicant doesn’t need to be sponsored by a U.S. employer to qualify, and they can self-sponsor under the EB-1A category.
Other Things to Consider for Immigrant IT Workers
Keep in mind, when you sponsor foreign workers, you must follow certain immigration rules. IT work often involves client sites or third-party placements, posing unique challenges for immigration compliance. If you want your employees to work at locations other than those specified in the initial H-1B petition, you’ll need to ensure that amended H-1B petitions are filed beforehand.
Additional documentation is also required for locations outside the employer’s premises. Rules for employees working partly at non-employer sites must also be strictly adhered to. Additionally, companies using IT contractors may need to provide documentation to establish the employer-employee relationship.
If your business has a large number of H-1B workers, you want to ensure you’re aware of the rules governing H-1B dependent employers. These rules entail additional attestations and fees. Lastly, understanding the regulations regarding “benching” H-1B employees is essential to maintaining compliance with immigration requirements.
The Bottom Line
Employing foreign IT professionals in the U.S. is becoming increasingly challenging. However, with a thorough understanding of the available visa categories and a strategic approach to immigration, companies can tap into the vast global talent pool. Doing so helps businesses maintain their competitiveness in the ever-evolving tech industry. Staying well-informed about immigration regulations, seeking legal counsel, and proactively planning for permanent residency are key steps in successfully navigating the intricate immigration process. Companies must be able to adapt to changing regulations. When you ensure compliance, your business can thrive in this evolving digital age.
Sponsoring Engineers for U.S. Work Visa – Frequently Asked Questions (FAQs)
Choosing the right visa for a potential software engineer depends on many factors, such as the engineer’s qualifications and the company’s requirements. Unfortunately, there is no “one-size-fits-all” solution. When deciding on the best visa for a software engineer, you can consider the following:
- Qualifications: Review the specific qualifications and educational background of the software engineer. Some visas, like the H-1B, have degree requirements, while others, like the O-1, focus on achievements.
- Nationality: Depending on the engineer’s nationality, different visa categories may be more suitable. For example, Canadians and Mexicans may opt for the TN visa, while Australians have the E-3 as an option.
- Company Needs: Consider the nature of the work and the company’s international presence. The L-1 visa is ideal for multinational corporations.
- Green Card Goals: If the long-term goal is permanent residency, explore the green card process, as outlined in the article. This process may influence the initial visa choice.
- Legal Compliance: Ensure that your company complies with immigration regulations, especially if your IT professionals work at client sites or have third-party placements.
- Expert Guidance: Seek legal counsel from immigration experts to navigate the complexities of U.S. immigration law and choose the best visa option based on the unique circumstances.
Ultimately, the choice of visa will depend on the specific needs and circumstances of the software engineers and the hopeful employee or the company. Consulting with immigration experts can help you make an informed decision and navigate the process successfully.
Employers can sponsor employees on either a temporary or permanent work visa. If you’re interested in temporarily sponsoring an engineer in the U.S., you can file a petition with USCIS on behalf of the employee. If the employee possesses the necessary skills, education, and work experience, then the employer, or in some cases, the employee themselves, may seek permanent employment in the U.S. through an employment-based immigrant visa.
You can sponsor an employee for permanent residency as well. Individuals in the U.S. under a nonimmigrant status without employment authorization can apply to change or adjust their status, becoming a lawful permanent resident. This type of application might require you, the employer, to sponsor them. Those eligible, can apply for employment authorization using Form I-765. It’s essential to comply with conditions and terms to avoid consequences such as removal or denial of re-entry into the U.S.
There are ways for the software engineer to apply for work visas without the aid of an employer. So, even if you do want to sponsor an employee for a U.S. work visa, these are good alternatives to keep in mind. If a prospective employee outside of the U.S. wants to apply for a work visa, they typically must go through the U.S. Department of State. Also, USCIS approval is often necessary before applying for a visa or entering the U.S.; however, U.S. Customs and Border Protection officers can grant entry permission.
Yes, a foreign software engineer can work in the U.S. if they have appropriate work authorization. Those visiting the U.S. on a B1 visitor visa for business purposes are not allowed to work while in the U.S. If they wish to work, they must first apply for or be sponsored for work authorization in the U.S.