Engineering — 6 min
Visas and Work Permits — 10 min
Work permits and visas in the US: an employer’s guide
Written by
Sally Flaxman
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If you’re hiring in the US or relocating an existing employee, they must be eligible to work there.
In most cases, this usually means that your hire is a US citizen.
However, if your hire is a non-citizen, then you need to ensure they have the correct documents and permissions. As the employer, you are usually responsible for acquiring these.
This can be a tricky process, especially if you have no prior knowledge of US state and federal labor laws.
In this guide, we’ll explain the basics of work permits and visas in the US, and show you the various steps you may need to take (depending on your employee’s status). We’ll also touch on the regulation around digital nomads.
Jump straight to a key chapter
So let’s dive right in.
Why is eligibility important?
The US is one of the most desirable countries in the world for workers and businesses to settle in, but its work permit and visa requirements can be broad and complex. If you and your employee fail to comply with them, you may receive fines, penalties, ongoing scrutiny, and reputational damage.
These risks are only growing, too, especially as trends shift towards remote work and governments start to reassess their existing policies. For example, there are many instances of workers on tourist visas overstaying in countries. This can create issues for themselves and the companies they work for, and authorities are cracking down.
As a result, it’s crucial to ensure that everything is above board, and that your people have the right paperwork.
Who is eligible to work in the US?
US citizens are eligible to work unrestricted in the country, even if they are currently living abroad. Permanent residents must provide proof of their eligibility to work in the US, such as a Permanent Resident Card (PRC, also known as a ‘Green Card’).
However, if your employee is not a US citizen or permanent resident (i.e. they are a non-citizen), they will need to acquire permission to work in the US.
Here’s what you need to do to get that permission.
Visas and work permits for non-citizens of the US
It’s important to first note that work permits and visas are not the same thing.
In the US, a work permit is known as an Employment Authorization Document (EAD), and it authorizes the recipient to work in the US for any employer. It is not a travel document.
A visa, meanwhile, allows the recipient to physically enter the US (and re-enter if they leave). There are many types of visas that are granted based on the recipient’s proposed activities, such as studying, working, seeking asylum, or doing business. In this instance, we will focus only on work visas.
Generally speaking, recipients of a valid work visa do not need a work permit (although they will need to acquire one if they later decide to apply for permanent residence status in the US).
Getting a work visa in the US
Your employee can opt to apply for an EAD (i.e. a work permit) using form I-765.
However, the most common way to employ a non-citizen in the US is through a work visa. To do this, you — the employer — must first file a petition with the US Citizenship and Immigration Services (USCIS) department on your employee’s behalf.
If successful, the USCIS will grant your employee a temporary (non-immigrant) worker visa under a specific classification (see below).
Alternatively, if your employee has the right mix of skills, education, and work experience, they can seek to obtain a permanent employment-based immigrant visa. Note that the US only issues 140,000 of these visas each year.
Types of worker classifications in the US
As mentioned, there are different classifications for temporary worker visas in the US. These include — but are not limited to:
H-1B: For workers in specialty occupations that usually require a bachelor's degree (or above). It is valid for up to three years and can be renewed for an additional three years.
L-1: For existing employees of your company (for at least one year) who want to relocate to a managerial, executive, or specialized knowledge position in the US.
O-1: For workers who have demonstrated extraordinary ability in a particular field, such as through awards, publications, or other recognized forms of recognition.
TN: For citizens of Mexico and Canada to work in certain professions (such as engineering, medicine, and teaching) under the North American Free Trade Agreement (NAFTA). It is eligible for three years and can be renewed indefinitely.
H-2A & H-2B: For workers who perform seasonal work, such as in agriculture, hospitality, and forestry.
You can see a full list of these classifications on the USCIS website.
Eligibility requirements for worker status in the US
In most cases, your employee cannot apply for a work visa until you (the employer) have filed the petition with USCIS. Depending on the type of work to be performed, you may also need to provide additional documentation to the US Department of Labor (DoL).
There are no “general” requirements for acquiring a work visa; each classification has its own eligibility criteria based on relevant factors, such as your employee’s level of education and experience.
How do I sponsor my employee’s work visa in the US?
To obtain a temporary (non-immigrant) worker visa, here’s what you need to do in full:
1. Identify the right visa
The first step is to determine the appropriate visa category for your employee's role and circumstances (as listed above). Some of the most common visa categories include H-1B visas for specialized workers, L visas for relocations and intracompany transfers, and TN visas for certain Canadian and Mexican professionals.
2. Gather the relevant documentation
The next step is to get your paperwork in order. As a minimum, you will need proof of your employee's identity, as well as proof of qualifications and experience. As mentioned, other documentation may also be required, depending on the type of work visa you are applying for.
3. File the petition with USCIS
At this stage, you need to file the petition with USCIS on behalf of the employee. For temporary (non-immigrant) workers, you will need to use form I-129. This petition must include supporting documents such as the job offer (if applicable), evidence of the employee's qualifications, and other relevant information.
4. Acquire the visa
Once the petition is approved, your employee can apply for the relevant visa at their nearest US consulate or embassy. You will likely need to supply their application with supporting documentation.
Once the visa is issued, your employee can then travel to the US and begin (or continue) legally working for you. Note that, from this point, your employment agreement is required to comply with US labor laws.
The processing time for a work visa depends on how busy the relevant US embassy or consulate is, and the type of visa being issued. In general, it should be no longer than a few months.
Sponsoring permanent residence in the US
As mentioned, your employee may also be eligible to apply for a permanent work visa, which would allow them to live and work in the US indefinitely. If your employee would like to pursue this option, you can sponsor them by filing a petition with USCIS using form I-140.
Remote can assist you throughout both of these processes. To learn more, check out our dedicated relocation guide below:
Digital nomad visas in the US
With the rise of remote work and globally-dispersed teams, more and more individuals are adopting the digital nomad lifestyle. In response, governments across the world are implementing new legislation and — in some cases — specialist visas to adapt to this trend.
Does the US offer a digital nomad visa?
Unfortunately, no. There is currently no specialist digital nomad visa available in the US, and — unlike many other countries — workers are also not permitted to work remotely (for either a US-based or foreign organization) on a B-1 (business) or B-2 (tourist) visa.
Navigating visas and work permits in the US with Remote
As you can see, there’s plenty of administrative work to do if you want to hire a non-citizen or relocate an employee to the US.
As well as helping you manage your employees’ onboarding, taxes, and payroll, we can also support you with their relocation process. Specifically, we will:
Set up a consultation with one of our mobility experts
Review your employee’s existing visa and citizenship status
Review the visa and work permit requirements for the desired country relocation
Review your employee’s eligibility
Fill out the paperwork (with assistance from you and your employee)
Submit the application
This ensures that any potential hiccups are identified quickly, and that the process is as quick and smooth as possible — for both you and your employee.
To learn more about how you can make the entire relocation process easier with Remote, book a consultation with one of our friendly mobility gurus — and get the process moving today.
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