Employers and human resource professionals should consider consulting with experienced immigration counsel before hiring a foreign national to work in the United States.
Employers and HR professionals also may have the following questions, which include general guidance from Garfinkel Immigration Law Firm and should not be interpreted as specific legal advice.
Circumstances vary from client to client in important detail. Please contact the Firm for advice regarding questions or issues particular to specific situations.
What questions can I ask to find out if an individual needs immigration assistance without discriminating against the individual?
You may ask the question, “Do you have unlimited, unrestricted authorization to work for any U.S. employer?”
Would I be discriminating against a foreign national if I did not consider them for a possible position since they are not a U.S. citizen?
No. You may hire a U.S. worker over a foreign national even if they possess the same skill set and educational level.
What documents do I ask the foreign national to present for I-9 purposes?
For I-9 purposes, you cannot specify what documents the foreign national may present. You can advise that they must provide documentation in compliance with the Form I-9 list of acceptable documents.
Can I extend an offer but make it based on the foreign national obtaining authorization to work in the U.S.?
Yes. You should consult with local employment contract counsel for advice regarding such a contingency.
I have a candidate who states that they are on an F-1 visa and eligible to work pursuant to Optional Practical Training (OPT). What does this mean?
In most cases Optional Practical Training (OPT) allows a foreign national to work for up to one year after graduation from college or university in their field. OPT may be authorized for one year and may be extended in certain circumstances, for up to two additional years. OPT is facilitated and authorized by the college’s Designated Student Officer (DSO).
The foreign national will receive an Employment Authorization Document (EAD). The foreign national must possess this card before they are authorized to work.
What if I want to employ the foreign national for more than the one year of OPT?
The foreign national may be eligible for an extension of their OPT work authorization or another employment-based visa. Please contact Garfinkel Immigration Law Firm for further information.
What positions typically qualify a foreign national for an H-1B visa?
Positions that require at least a bachelor’s degree typically suffice. The foreign national must possess the bachelor’s degree (or its equivalent) in a field specifically related to the position.
How do I find out what the prevailing wage is for an H-1B?
This information is available through the Foreign Labor Certification Data Center. Please contact Garfinkel Immigration Law Firm for additional information.
What if a candidate states that they are on an H-1B visa for another employer and just need a “transfer”?
A new H-1B petition must be filed with USCIS before the foreign national may “transfer.” Please contact Garfinkel Immigration Law Firm For additional information.
Who pays for the H-1B visa and how much does it typically cost?
U.S. immigration law requires that the employer cover mandatory filing fees as well as legal fees and costs.
How quickly can the foreign national start working for my company?
It depends on the foreign national, visa status and/or the type of petition/application being filed on their behalf. Please contact Garfinkel Immigration Law Firm for additional information.