After a long and exhaustive search, you finally found the candidate with all the prerequisite qualifications for the job. Interviews reveal that she probably will accept your offer of employment, if extended. The problem: she is a foreigner without authorization to work in the U.S. The questions: is she eligible to apply for work authorization and how?
U.S. employers should know the basic legal requirements for hiring a foreign national. At the present time, the frequently used methods to hire foreign workers are H-1B and TN visas. Although similar, these two visas differ in their legal standards and application procedures. Legal assistance is necessary to obtain approval under either method.
About H-1B
H-1B is a visa classification designed for U.S. employers in hiring foreign workers in certain specialty occupations where there is a shortage of able, willing, and qualified U.S. workers. A "Specialty Occupation" is defined as "an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor." A "Specialty Occupation" must meet very specific criteria.
To initiate the H-1B application process, an employer must submit extensive documentation in a package.
The costs associated with H-1B application range from $130 to $2130 depending upon the circumstance. Additional payments enable the employer to obtain an expedited answer from the INS concerning the application. Under Premium Service Processing, the INS must respond to the employer's application within 15 days of receiving the application or return the $1,000. More and more employers are utilizing this service simply to avoid the long waiting period for regular H-1B applications.
A H-1B visa is good for three years, with a possible one-time renewal of another three years, for a total period of six years.
TN Status
TN is a product of the North America Free Trade Agreement ("NAFTA"). Under NAFTA, a Canadian citizen may work in a professional occupation in the United States or vice versa. Mexican professionals are treated differently than Canadian professionals, an issue beyond the scope of this article.
For U.S. employers wishing to hire a Canadian professional, a TN is available if: (1) the profession is on the list of professions allowed under NAFTA; (2) the Canadian citizen possesses the specific criteria required for the profession; (3) the prospective position requires someone with the stated professional capacity; and (4) the employer is an U.S. entity.
TN is not a visa in the normal sense of the word. Rather, it is a status extended only to Canadian citizens under NAFTA. It is good for one year and has to be renewed on an annual basis. However, the advantages are that TN does not require labor condition certification from the DOL and can be obtained right at the port of entry. The cost is substantially lower than for an H-1B: only a $50 processing fee is required, compared to the possible cost of $2,130 for an H-1B.
To apply for TN, the Canadian employee must present the numerous documents at the port of entry into the U.S.
Although TN may be applied for at the port of entry, in practice, this process can take quite a few hours depending on the daily situation and specific policies of each port of entry. It is advisable that the selected port of entry, whether the border or an airport, be contacted well in advance regarding any special requirements for TN application.