Visa Sponsorships: Why and How
© zimmytws / Adobe Stock
In today’s market, hiring a qualified teammate can be like finding a needle in a haystack. The more restrictions and screening methods we use during the interview process, the harder it may be for those diamonds in the rough to really shine. Have you ever been asked to sponsor a candidate’s visa and you’re not sure what that entails? Is it legal to deny sponsorship or would that constitute discrimination? Let’s navigate this foreign territory together.
Quick Summary
Visas represent permission to travel to live and/or work in a country outside of a candidate’s country of citizenship. Those who hold visas sometimes apply for this opportunity on their own, go through a screening process, and wait to be selected out of millions of applicants. In many cases, in order to work in the U.S., they must have an employer “sponsor” them through the process, provide a working opportunity, and validate the experience with supervision and training.
Who
The U. S. Citizenship and Immigration Services (USCIS) is an agency of the United States Department of Homeland Security that administers the country’s immigration system. Employers are primarily exposed to USCIS by completing the Form I-9 to verify the employment authorization for new hires within their first three days of employment. USCIS also manages the process that allows individuals from other countries to work in the U.S. Some of these work opportunities are temporary and some provide a path to permanent residence (a green card). By the end of fiscal year 2021, USCIS approved over 172,000 employment-based adjustment of status (green card) applications, an increase of 50% above the typical baseline. Also in fiscal year 2021, USCIS received 274,237 H-1B registrations for the 85,000 available H-1B visa slots. Visas are in high demand!
What
There are many kinds of visas, but the most common seem to be H-1B (specialty occupation) visas or student visas. Other visas are separated into categories that get more specific as we narrow down the qualifications and functions of each role. These include:
· E-1 or E-2: Nonimmigrant visas for treaty traders or investors
· E-3: Australian specialty occupation workers
· H: Specialty occupation or other temporary worker visas
· L: Intra-company transferee visas
· O: Extraordinary ability visas
· P: Athletic or arts-based visas
· R: Temporary religious worker visas
Another way for foreign nationals to visit the U.S. for business purposes involves having a valid Electronic System for Travel Authorization (ESTA). This is an option if someone is travelling from a pre-approved country and will only be in the US for business for under 90 days. Additionally, citizens of Canada and Mexico have the opportunity to obtain TN visa status through the North American Free Trade Agreement (NAFTA) that permits entry and work authorization for certain professional business workers.
How
Not only can foreign nationals apply for individual visas, but employers can apply as well! If you find the right candidate, but they lack U.S. work authorization, you may be able to file a petition on the prospective candidate’s behalf and sponsor an employment-based work visa. The USCIS has information on how to do this on their website. Additionally, if you’re interested in applying for an H-1B visa on behalf of an applicant or current employee, the initial registration period for the fiscal year of 2023 opens on March 1 and runs through March 18, 2022.
There are also employer programs designed to serve certain industries that experience seasonal or peak needs. For example, the H-2A Visa is specifically for agricultural workers and the H-2B visa is for non-agricultural work. These visas are temporary in nature and designed to help with the seasonality of these particular industries. Employers can predetermine how many vacancies or positions they will need to fill, apply for this program, and be awarded a certain number of visa slots for a designated period of time. The Department of Homeland Security (DHS), in consultation with the Department of State (DOS), lists countries whose nationals are eligible to participate in the H-2A and H-2B visa programs annually. For more information, see the Federal Register.
In sum, the process of sponsoring a visa generally includes following these main steps: determining if the position and candidate meets eligibility requirements, properly notifying the US workforce of your intentions, being approved/selected, filing the required visa paperwork, and paying any filing fees. Ultimately, it is up to you to advertise this opportunity and make your applications available to the right populations, if you do not already have candidate(s) in mind.
Why
Many employers may wonder why they would consider sponsoring a visa, and there are really two main reasons. The first is to increase your candidate pool with more options, which is appealing if your local recruiting efforts aren’t getting you very far. Iowa Workforce Development shows our unemployment rate is 3.5% as of December 2021. It’s just hard to find national talent these days as many quality workers are happily employed elsewhere. Being willing to sponsor employment-based visas opens the door to a new talent pool.
The second reason is to diversify your workforce by bringing in teammates who may have different backgrounds and perspectives than your existing team. With multiple nationalities and ethnicities represented on one team, people start to think outside the box and become more inclusive. There is an unbelievable amount of data available proving time and again that diversifying one’s workforce can improve the overall working function of your team, such as increasing cognitive innovation by up to 20% (as published by Diversity & Inclusion Speakers Agency). It’s exciting to know we have that capability by utilizing the non-traditional recruiting method of applying for or sponsoring a visa!
But do I have to?
Technically, no. Employers can have a policy that states their intentions on handling employer-based visa sponsorship. For example, an employer can specify they do not sponsor visas for either a particular position, department, or the company as a whole. However, if you have this policy you will want to stick to it and enforce it consistently. On the flip side, you can list certain positions that are eligible for sponsorship. Overall, you want to be careful to not discriminate against a minority applicant and deny them because of their nationality or ethnicity.
Cost
Many employers seek to understand the costs associated with employment-based visa sponsorship. Costs vary depending on the particular visa category. Filing fees can range from $460 - $2,460 and there can be restrictions on an employer’s ability to pass these costs onto the employee. The USCIS website has information including applicable forms and filing fees associated with various applications.
Assistance
If you feel comfortable with the filing process, you’re welcome to jump in on your own, however; in many cases, employment law attorneys are there to help you through the application and documentation process. For questions, tools, and/or referrals, the Human Resources Consulting team at Skywalk Group can help draft those policies and keep your practices consistent. For more information, see the USCIS.gov website, or contact our HR team.
By Samantha Rogers