Hiring and Visa Options In the US

Anke Corbin

The information on this page was current at the time it was published. Regulations, trends, statistics, and other information are constantly changing. While we strive to update our Knowledge Base, we strongly suggest you use these pages as a general guide and be sure to verify any regulations, statistics, guidelines, or other information that is important to your efforts.

Hiring Options in the US

There are different options for you to expand your workforce into the US. Each has its own considerations, including the employment laws and regulations that cover it. If you want to jump into Employment Law first, you can get an overview of the regulations that will govern your employer-employee relations.

The first decision you will need to make is whether to bring your employees from home or hire employees in the US. Below you will find a discussion and the resources available to help you determine whether it is best for you to bring employees with you to the US or to hire employees in the US, as well as resources to help you hire employees in the US, should you decide to go in that direction.

Of course, if you are sending or bringing someone from outside the US, it’s very possible you will be required to apply for a visa.

Visa Options in the US

There are different options available to entrepreneurs wanting to come to the United States to start a business. Nonimmigrant visa pathways allow foreign entrepreneurs to explore the possibilities of or start a new business in the US. Immigrant visa pathways allow foreign entrepreneurs who have already started or are about to start a new business in the US to immigrate to the US permanently.

Temporary (nonimmigrant) Visas

Nonimmigrant visas are available to individuals who only want to come to the United States temporarily. There are a number of nonimmigrant visas available for different purposes and different industries. To review the many different options, review the section on Temporary (Nonimmigrant) Workers on the US Citizenship and Immigration Services website. A few of the most common visas

available to entrepreneurs are explained below.

B-1 Temporary Business Visitor : B-1 temporary business visitor visas are for individuals coming to the United States temporarily to conduct business, to include securing funding, finding office space, negotiating contracts, and attending business meetings. You may be eligible for a B-1 business visitor visa if most of the following apply to your situation:

You only need to come to the US for a short, specific, and limited time period, typically under 6 months;
You need to come to the US for the purpose of setting up a new business or office in the US;
You need to attend meetings or conduct other business activities in the US;
You can document that you have enough funds to cover your expenses while you are in the US without having to obtain employment locally.
To get a B-1 business visitor visa you must be able to demonstrate the above conditions. With a B-1 visa, the initial stay is up to six months, but extensions of your stay may be possible.

H-1B Speciality Occupation: The H-1B visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations that require theoretical or technical expertise in a specific field. These occupations typically require a bachelor’s degree or its equivalent as a minimum entry requirement. The H-1B visa is valid for three years and can be extended for up to an additional three years for a total of six years.Eligibility Requirements
To be eligible for an H-1B visa, an individual must meet the following requirements:

Specialty Occupation: The position offered must be a specialty occupation that requires a bachelor’s degree or its equivalent as a minimum entry requirement. The Department of Labor (DOL) maintains a list of eligible specialty occupations, but the list is not exhaustive. The DOL may also determine on a case-by-case basis whether an occupation is a specialty occupation.
Bachelor’s Degree: The individual must have a bachelor’s degree or its equivalent from an accredited educational institution. The equivalent of a bachelor’s degree may include work experience, training, or other relevant qualifications.
Wages: The individual must be offered a wage that is equal to or higher than the prevailing wage for the occupation in the area of intended employment. The prevailing wage is determined by the DOL based on a survey of employers.
Application Process:
The application process for an H-1B visa involves several steps:
Labor Condition Application (LCA): The employer must first file an LCA with the DOL. The LCA attests that the employer will pay the H-1B worker the prevailing wage for the occupation and will not adversely affect the wages and working conditions of U.S. workers.
Form I-129 Petition for a Nonimmigrant Worker: Once the LCA is approved, the employer must file Form I-129 with U.S. Citizenship and Immigration Services (USCIS). The petition must include documentation supporting the eligibility of the occupation and the individual.
Interview: In some cases, the H-1B visa applicant may be required to attend an interview at a USCIS field office.
Annual Cap and Extensions:
The H-1B visa program has an annual cap on the number of visas available. In recent years, the cap has been reached quickly. If the cap is reached, USCIS will conduct a lottery to select visas from the pool of eligible applicants.
H-1B visas can be extended for up to an additional three years for a total of six years. In some cases, extensions beyond the six-year limit may be possible.

O-1A Extraordinary Ability and Achievement: The O-1A visa category is designed for individuals who possess extraordinary ability in the arts, sciences, education, business, or athletics. This visa allows these individuals to work in the United States temporarily to continue their work in their respective fields.
Eligibility Requirements:
To be eligible for an O-1A visa, an individual must meet the following requirements:

Extraordinary Ability: Demonstrate sustained national or international acclaim in their field of expertise, which means they have reached the top of their field and are widely recognized for their achievements.
Sustained Recognition: Provide evidence of sustained national or international acclaim, such as:
- Receipt of a major, internationally recognized award, such as the Nobel Prize or Pulitzer Prize
- Membership in associations that require outstanding achievements of their members
- Published materials about the individual in professional journals or other major media
Coming to the US to Work: Have an offer of employment in the United States to work in their field of expertise.
Consultation Letter: Obtain and provide a consultation letter from an appropriate peer group or organization with expertise in the applicant’s field. This letter should attest to the individual’s extraordinary ability and achievements.
Petition and Application Process:
Unlike other nonimmigrant visa categories, O-1A visas cannot be self-petitioned. Instead, the petition must be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. The petition must include extensive documentation supporting the individual’s extraordinary ability and achievements.
Initial Period of Stay and Extensions:
The initial period of stay in the U.S. under an O-1A visa is up to three years. This period can be extended in one-year increments, as long as the individual continues to work in their field of expertise and maintains their extraordinary ability.
Additional Considerations:
The O-1A visa does not require a bachelor’s degree or its equivalent.
The O-1A visa is a dual intent visa, meaning that applicants can seek lawful permanent residency (green card) while in the United States.
O-1A visa holders are not subject to the H-1B visa cap.

E-2 Treaty Investor: The E-2 Treaty Investor visa category is designed to facilitate trade and investment between the United States and its treaty countries. This visa allows nationals of treaty countries to invest a substantial amount of capital in a U.S. business and stay in the U.S. to develop and direct the enterprise.
Eligibility Requirements:
To be eligible for an E-2 Treaty Investor visa, an individual must meet the following requirements:

Nationality: Be a national of a country with which the United States has a Treaty of Friendship, Commerce, and Navigation (FCN) or an equivalent agreement. A current list of treaty countries can be found on the Department of State’s website.
Investment: Have invested or are in the process of investing a substantial amount of capital in a bona fide enterprise in the United States. The investment must be more than marginal and must be sufficient to ensure the successful operation of the enterprise.
Control of Investment: Have control of the investment, which means owning at least 50% of the company’s stock or having operational control through a managerial position or other corporate mechanisms.
Purpose of Stay: Be coming to the United States to develop and direct the enterprise. This means actively participating in the management and operation of the business.
Application Process:
The application process for an E-2 Treaty Investor visa involves several steps:
Business Establishment: Establish a bona fide enterprise in the United States. This may involve forming a new business or purchasing an existing one.
Investment: Make a substantial investment in the enterprise. The amount of investment required will vary depending on the size and nature of the business.
E-2 Visa Application: File Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS). The petition must include documentation supporting the eligibility of the investor and the investment.
Interview: In some cases, the E-2 visa applicant may be required to attend an interview at a USCIS field office.
Period of Stay and Extensions:
The initial period of stay in the U.S. under an E-2 visa is up to two years. Extensions can be granted in two-year increments, as long as the investor continues to meet the eligibility requirements and maintains the investment.
Additional Considerations:
The E-2 Treaty Investor visa does not require a bachelor’s degree or its equivalent.
The E-2 Treaty Investor visa is a dual intent visa, meaning that applicants can seek lawful permanent residency (green card) while in the United States.
E-2 Treaty Investors are not subject to the H-1B visa cap.

L-1 Intracompany Transferee: The L-1 intracompany transferee visa is a nonimmigrant visa category designed to allow companies to temporarily transfer their employees from a qualifying organization outside the United States to a related organization in the United States. This visa is available to executives, managers, and other workers with specialized knowledge who have worked for a qualifying organization for at least one year within the three years before the filing of the L-1 petition.
Eligibility Requirements:
To be eligible for an L-1 intracompany transferee visa, an individual must meet the following requirements:

Employee-Employer Relationship: The individual must have been employed abroad for at least one continuous year within the past three years by a qualifying organization, including its affiliates, parent, subsidiaries, or branches of the individual’s foreign employer.
Occupation: The individual must be coming to the United States to work in a position that is managerial, executive, or involves specialized knowledge.
Related Organizations: The foreign employer and the U.S. employer must be related entities, meaning that they have a common parent company, share common ownership, or have a similar relationship.
New Office Petitions: For L-1A visas used to establish a new office in the United States, the individual must be coming to the United States to open a new office location for their company.
Application Process:
The application process for an L-1 intracompany transferee visa involves several steps:
Petition: The U.S. employer must file Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS). The petition must include documentation supporting the eligibility of the employee and the relationship between the employers.
Supporting Documents: The petition must be accompanied by supporting documentation, such as proof of employment abroad, proof of relationship between the employers, and evidence of the employee’s qualifications.
Interview : In some cases, the L-1 visa applicant may be required to attend an interview at a USCIS field office.
Period of Stay and Extensions:
The initial period of stay in the U.S. under an L-1 visa is up to three years (one year for new office petitions). Extensions may be possible in up to two-year increments for a maximum period of seven years for managers and executives and up to five years for specialized knowledge workers.
Additional Considerations:
The L-1 visa does not require a bachelor’s degree or its equivalent.
L-1 visa holders are not subject to the H-1B visa cap.
L-1 visa holders may be eligible for lawful permanent residency (green card) after meeting certain eligibility requirements.

Permanent (Immigrant) Visas

In 2023, immigrant visas offer a pathway for individuals and their families to legally establish permanent residency in the United States. The number of available visas can vary annually, with recent allocations exceeding 140,000.

First Preference EB-1: An EB-1 classification is available to individuals who have extraordinary ability in the sciences, arts, education, business, or athletics, are an outstanding professor or researcher, or are a multinational executive or manager. To be eligible for an EB-1 visa you must meet the following requirements:

you have an extraordinary ability in the sciences, arts, education, business, or athletics, are a professor or researcher, or are an executive or manager;
you possess sustained national or international acclaim in your field; and
you are coming to the US to work in your area of expertise.You must be able to demonstrate the above requirements to be eligible for an EB-1 visa. Since a job offer is not required for an extraordinary ability immigrant classification, you can self-petition as an extraordinary ability individual. If you are coming to the US as a professor or executive, your employer must file a Form I-140 Petition for Alien Worker.

Second Preference EB-2: The EB-2 classification is available to two types of individuals 1) professionals with advanced degrees and 2) individuals with an exceptional ability in the sciences, arts, or business. The EB-2 classification generally requires a job offer and a labor certification from the Department of Labor (DOL).
DOL regulations prohibit the issuance of labor certifications for self-employed individuals, therefore, an entrepreneur will generally not be able to apply for EB-2 classification unless he qualifies for a National Interest Waiver, which exempts the entrepreneur from the job offer requirement, and thus the labor certification. To qualify for this classification, your employer must file a Form I-149 Petition for Alien Worker.

Advanced Degree Professional: You may be eligible for EB-2 advanced degree professional classification if:
- You are a professional who holds a US master’s degree or higher or a foreign equivalent degree that relates to the field in which you will work; or
- You have a bachelor’s degree or foreign equivalent degree and at least five years of progressively responsible experience in your field after receiving your bachelor’s degree.
Exceptional Ability: You may be eligible for an EB-2 exceptional ability classification if you have an exceptional ability in the sciences, arts, or business.

Third Preference EB-3: The EB-3 classification is for skilled workers, professionals, and other workers. Skilled workers are individuals whose job requires at least a minimum of two years of training or work experience, which cannot be of a temporary or seasonal nature. Professionals are individuals whose job requires at least a bachelor’s degree or foreign equivalent and are members of the professions. Other workers are individuals who perform unskilled labor that requires less than two years of training or experience, which is not of a temporary or seasonal nature.
Third preference classification visas generally require a full-time job offer and a labor certification from the DOL. For all EB-3 visas, the employer must file a Form I-140 Petition for Alien Workers on behalf of the employee.
Fourth Preference EB-4: EB-4 classification visas are available to “special immigrants,” which includes:

Religious workers
Broadcasters
Iraqi/Afghan Translators
Iraqis Who Have Assisted the United States
International Organization Employees
Physicians
Armed Forces Members
Panama Canal Zone Employees
Retired NATO-6 employees
Spouses and Children of Deceased NATO-6 employees
Fourth preference classification visas generally require that the employer file a Form I-360 Petition for Amerasian, Widow(er), or Special Immigrant. In certain situations, an individual can file the petition on her own behalf.

Fifth Preference EB-5: EB-5 classification visas are available to individuals who:

make the necessary (can be $1,000,000 or $500,000, depending on the circumstances) investment in a commercial enterprise in the United States; and
plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.

Hire Local US Talents

You have many different options for hiring local talent in the US, including: hiring your own employees (full-time, part-time, and fixed-term), hiring through a recruitment agency, and hiring freelancers, consultants, and contractors. Here are eight steps you should take to ensure your compliance with key federal and state regulations during your hiring process.

Obtain an Employer Identification Number (EIN): Before hiring employees, you must get an Employer Identification Number from the Internal Revenue Service (IRS). An EIN is necessary for reporting taxes to the IRS and when reporting information about your employees to state agencies. Apply online for Employer Identification Number (EIN) here.
Set up Records for Withholding Taxes: The IRS requires that you keep records of employment taxes for at least four years. Keeping good records can also help you monitor your business, including preparing financial statements and tax returns, and keeping track of business expenses. The three types of withholding taxes you need are:
– federal income tax,
– federal wage and tax statement, and
– state taxes. Review the 2023 Employer’s Tax Guide or the state-specific information for more employer tax details.
Employee Eligibility Verification: Federal law requires that you verify your employees’ eligibility to work in the US. All employers must complete a Form I-9, employment eligibility verification, within three days of hire. This form requires that employers examine documents to confirm an employee’s citizenship or eligibility to work in the US. You are only permitted to request the documents specified on the form.
You are not required to submit the Form I-9 to the federal government, but are required to keep it on file for three years after the date of hire or one year after the date of the employee’s termination, whichever is later. You should use the information from the form to electronically verify the employment eligibility of newly hired employees.
Register with your State’s New Hire Reporting Program: You are required to report newly hired employees to your state’s directory within 20 days of their hire date. View the Small Business Administration’s Hire and manage employees for more information and to find links to your state’s New Hire Reporting System.
Obtain Workers’ Compensation Insurance: If your business has employees, you are required to carry workers’ compensation insurance through a commercial carrier, on a self-insured basis, or through your state’s workers’ compensation insurance program.
Post Required Notices: You are required to post certain posters in your workplace that inform your employees of their rights and your (as their employer) responsibilities under labor laws.
File your Taxes : Generally, if you pay wages that are subject to income tax withholding, Social Security, and Medicare taxes, you must file an IRS Form 941, Employer’s Quarterly Federal Tax Return. This form can be filed online. You may also have state tax filing obligations.
Set up a Recordkeeping and Organization System: In addition to payroll record keeping obligations (for tax purposes), there are a number of other federal laws that also require that you keep employee records. Below is a list of websites that provide more information about federal recordkeeping and reporting obligations:

Bringing your Employees with you

Many companies’ preferred approach to setting up and hiring abroad is to have someone who has been employed at the home office transfer that culture and experience to a new foreign office by setting up the office and hiring the first team abroad. Those employees from home begin to establish important relationships in the US and hire people in the US who will help make the business a success. There are many options for you, as an entrepreneur or business owner, to come to the US or to send current employees to the US to expand your business. These options include both temporary and permanent visas.

Hiring Your Own Employees

One of the first decisions you will need to make is whether to hire employees or independent contractors. Most companies choose to hire employees, however many small businesses start out by hiring independent contractors. There is an important distinction between employees and independent contractors, e.g., employer tax withholding and liability implications. It is imperative that you know the difference so you can avoid costly mistakes. The following is a list of the differences between employees and independent contractors:

Employees:

perform duties dictated or controlled by you (the employer);
are given training on the work to be done; and
generally work for only you (one employer).

Independent Contractors:

operate under a business name (their own business name);
have their own employees;
maintain separate business checking accounts;
advertise their business’ services;
invoices (you) for work completed;
work for more than one client;
have their own tools/equipment
set their own hours; and
keep business records.

There is no single test for determining whether an individual is an employee or an independent contractor. Whether a person is an independent contractor or an employee generally depends on the amount of control exercised by the employer over the work being done.

Hiring your own employees in a foreign country is a daunting task. You want to target the right candidates, but not have too narrowa pool of applicants. Consider looking for employees in the following places:

Local schools or colleges;
Local newspapers;
Online recruitments, such as job websites and social media; and
Job Centers.

Recruitment Agencies in the US

You can use recruitment agencies to help you hire permanent and temporary employees in the US. Many recruitment agencies specialize in a particular industry or sector, such as IT, finance, legal, etc. Recruitment agencies are generally well connected and will find candidates that you would not be able to find and approach yourself.

Freelancers, Consultants, and Contractors

In the US you are permitted to hire freelancers, consultants, and contractors. In general, freelancers, consultants, and contractors are not entitled to the same rights as other employees and are responsible for keeping their own business and tax records.

References

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