Hiring Foreign Workers: The Rules Nobody Tells You
I work with employers who never set out to become immigration sponsors. It does not matter. The moment you hire anyone in the United States, the government gives you two jobs: verify that every new hire is allowed to work, and — only if you choose to sponsor someone — fit that person into a specific category with its own rules. There is no general permission slip that covers both, and confusing the two is where employers get into trouble.
Start with the duty that applies to every hire. Since 1986, federal law has required employers to verify the identity and work authorization of each person hired, using Form I-9. Legal workers fall into four groups: U.S. citizens, U.S. nationals, lawful permanent residents, and noncitizens who are authorized to work. You do not need to sort a new hire into the right group yourself. Form I-9 and the official Handbook for Employers (M-274) on the USCIS website tell you exactly which documents prove authorization — and the choice of which documents to show is the employee's, not yours.
The timing is strict and it is the same for a chief executive and a part-time hire. The employee completes Section 1 no later than the first day of work. You, or your authorized representative, must examine the original, unexpired documents the employee presents — one document from List A, or one each from List B and List C — and complete Section 2 within three business days of that first day; if the job will last fewer than three days, Section 2 is due on day one. Keep each form for three years after the hire date or one year after employment ends, whichever is later. If a hire's work authorization itself expires, you may need to reverify it on Supplement B — but never reverify a U.S. passport, a green card, or an identity document, and never reverify U.S. citizens or nationals at all. Employers enrolled in E-Verify in good standing may examine documents remotely under the DHS alternative procedure, with copies retained and a live video interaction. Everyone else examines documents in person, or through a representative who does.
Here is the trap built into that duty: at the same time the law makes you verify, it forbids you to discriminate. Section 274B of the Immigration and Nationality Act, enforced by the Immigrant and Employee Rights Section of the Department of Justice, prohibits discrimination in hiring and firing based on citizenship status or national origin. It also prohibits what lawyers call document abuse: asking for specific documents, asking for more documents than Form I-9 requires, rejecting documents that reasonably look genuine, or demanding a green card or a work permit by name. Wanting a document that does not expire is not a defence. The same rules reach your job ads — "U.S. citizens only" or "H-1B holders only" is unlawful unless a law or government contract genuinely requires it — and your use of E-Verify, which may not be used to pre-screen applicants or to check only the workers who look foreign to you. Being an at-will employer does not cure any of this. At-will governs how employment ends; it does not excuse how you verified, what you asked for, or whom you turned away at the door.
If the person you want has no work authorization, can you help them get it? Sometimes. There is no standard, general-purpose work permit an employer can simply apply for. Work authorization in the United States is almost always tied to a category, and usually to a specific employer and a specific job. An Employment Authorization Document exists only inside particular categories — a pending green card application is one example. So the honest question is never "can we get this person a work permit?" It is "which category, if any, fits this job and this person?"
Start with the job, not the person's nationality, and look at what you may already have. Many employers' best candidates are already working for them lawfully: a recent graduate on F-1 Optional Practical Training, for example, typically has twelve months of work authorization, and a graduate with a qualifying STEM degree can add a twenty-four-month extension — but only if the employer is enrolled in E-Verify and signs the Form I-983 training plan. That window is often the time to plan the longer-term category, not a substitute for one.
The workhorse category is the H-1B, for a specialty occupation: a job that requires a bachelor's degree or higher in a specific field, or its equivalent, and a worker who holds it. Before any H-1B petition, you must obtain a certified Labor Condition Application from the Department of Labor, on which you attest that you will pay the higher of the actual wage you pay similarly qualified workers or the prevailing wage for the occupation and area, that working conditions will not be adversely affected, that there is no strike or lockout, and that you have given the required notice. The Department decides a complete application within seven working days, there is no government fee for it, and you must keep a public access file. A certified Labor Condition Application is not an approval of the case — it is the foundation the petition to USCIS is built on.
Most private employers then face the H-1B cap: 65,000 new H-1Bs a year, plus 20,000 more for holders of a U.S. master's degree or higher. You enter by electronic registration, at $215 per beneficiary, and selection is beneficiary-centered and wage-weighted — a registration counts once at Wage Level I, twice at Level II, three times at Level III, and four times at Level IV, so the wage you offer changes the odds but guarantees nothing. If selected, the petition itself carries a Form I-129 fee of $780, or $460 for small employers and nonprofits, plus a $1,500 training fee — $750 for employers with twenty-five or fewer full-time-equivalent employees — a $500 fraud prevention fee on an initial or change-of-employer petition, and an Asylum Program Fee of $600, or $300 for small employers and nothing for nonprofits. Optional premium processing is $2,965. By law the training fee and the fraud fee are the employer's to pay; you may not pass them to the worker or make the worker reimburse you for them through a pay cut. Universities and related nonprofits, nonprofit research organizations, and government research organizations are exempt from the cap and may file at any time of year. One more cost must be checked before you budget a hire who is outside the United States: a presidential proclamation added a $100,000 payment to certain new H-1B petitions for workers abroad, its collection has been challenged in court, and whether it is being collected for your filing has to be confirmed at the time you file — do not build an offer on the assumption that it is either there or gone.
Two specialty-occupation routes skip the cap fight entirely when they fit. TN status, under the trade agreement with Canada and Mexico, is for citizens of those two countries working in one of the professions on the agreement's list — engineers, computer systems analysts, scientists, accountants, and dozens more — each with its own credential requirement. There is no cap and no Labor Condition Application; the case is a well-documented showing that the job is a listed profession and the worker meets its stated requirement. The E-3 is for Australian citizens in a specialty occupation, with its own annual limit of 10,500 that is separate from the H-1B cap, and it does require a certified Labor Condition Application. Both are granted in periods of up to three years for TN and two years for E-3, and both are renewable. When a candidate's citizenship and profession fit one of these, it is usually the fastest honest route to a start date.
If your company already operates abroad, the transfer categories may do the work. An L-1 moves an employee of a parent, branch, subsidiary, or affiliate abroad to the related U.S. company, after one continuous year of employment abroad within the last three years, in a managerial, executive, or specialised knowledge role. L-1A managers and executives may stay up to seven years in total; L-1B specialised knowledge workers up to five. A new U.S. office gets only one year at first, and the petition must show the office will support the role within that year. Companies with related offices on both sides of a treaty country have a second route: E-1 and E-2 status is based on the company's treaty trade or investment, not on the worker's special knowledge — a point older guides often get wrong — and it can cover executives, supervisors, and workers with essential skills who share the treaty nationality. Neither route has a cap or a Labor Condition Application, but both turn on documents about the company, not just the worker.
At the top of the scale is the O-1, for a person with extraordinary ability or achievement — in the sciences, education, business, or athletics, or with distinction in the arts or extraordinary achievement in film and television. There is no cap, no lottery, and no Labor Condition Application, but the standard is genuinely high: sustained national or international acclaim, shown by a major award or by evidence meeting at least three of the regulatory criteria, a specific job or engagement in the United States, and a written advisory opinion from a peer group or labor organization in the field. A U.S. employer or a U.S. agent files the petition; the worker cannot file it alone. Seasonal and short-term categories exist as well — H-2A for agricultural work and H-2B for other temporary work — but each turns on proving a genuinely temporary need and its own labor certification, and neither is a general answer to a permanent staffing problem.
Sponsoring a worker for a green card is a different commitment, and it is usually the long game rather than the quick fix. For most EB-2 and EB-3 cases the first step is PERM labor certification with the Department of Labor. You obtain a prevailing wage determination, then run the required recruitment exactly as the rules prescribe — a thirty-day job order with the state workforce agency, two Sunday newspaper advertisements or an ad in a professional journal where that is the normal route, a notice of filing at the worksite, and, for professional occupations, three additional recruitment steps — and you consider every U.S. applicant in good faith, rejecting only for lawful, job-related reasons you document. You then file Form ETA-9089; the filing date becomes the worker's priority date, the place in the green card line. The Department charges no fee for a prevailing wage request or for PERM, and the law puts every PERM cost — advertising, legal fees, all of it — on the employer. The worker may not pay them or reimburse them.
With a certified PERM, you file Form I-140 with USCIS — $715, plus the Asylum Program Fee — within 180 days, proving the worker met the job's requirements when the PERM was filed and that you have been able to pay the offered wage from the priority date onward. Some categories skip PERM altogether, including EB-1 cases and the EB-2 National Interest Waiver. The last step, the green card itself, waits on the monthly Visa Bulletin, which carries two charts: Dates for Filing, which can allow the worker to file the final application early when USCIS authorises that chart for the month, and Final Action Dates, which control when the green card can actually be granted. Filing early can bring a work permit and travel permission while the case waits; it does not bring the green card any sooner. Anyone who calls PERM a fast track is selling something: the wage step alone takes months, recruitment takes months more, and the Department's decision commonly takes the better part of a year, before the Visa Bulletin wait — which for workers born in heavily backlogged countries can run to years — is even counted.
So the practical sequence for an employer is this: do Form I-9 and the anti-discrimination rules correctly for every hire, without exception. Then, for the individual hire in front of you, define the job honestly, check the worker's citizenship, credentials, and current status against each category in turn — training time first if it exists, a cap-free category if one fits, the H-1B if it does not, a transfer or treaty route if the company supports one, and the green card as the long-term plan running underneath. Budget the government fees and the time before you make promises in an offer letter, because a start date you cannot lawfully meet helps no one. Whether a route exists at all can only be answered case by case, on the actual job and the actual person — and that answer is worth getting before you recruit around it, not after.
Tell me what you are working on and I will reply in writing, focusing on the issues involved.
General information, not legal advice. Requirements and processing change; we confirm current rules for your case.