Who Applies for an Employment Visa: Employer or Employee?

Many people come to America for workplace opportunities. As explained by United States Citizenship and Immigration Services (USCIS), “a common way to work temporarily in the United States as a nonimmigrant is for a prospective employer to file a petition with USCIS on your behalf.” In other words, an employer applies for this type of visa, not an employee directly.  Here, our Virginia employment immigration attorney explains the key things you should know about the mechanics of the visa application process.

Employment Visas: Employer Sponsorship Is the Legal Starting Point

The key thing to know is that it is generally the employer who must apply for the visa, not the employee. Indeed, for most nonimmigrant employment visas, the employer is required by law to initiate the application. In other words, the employer files the underlying petition with USCIS and must prove that the job qualifies under the specific visa category. Among other things, this includes establishing that the position meets statutory and regulatory criteria, that the employer is a legitimate operating business, and that it has the ability to comply with wage obligations.

Major Point: A foreign national cannot generally not self-petition for an employment visa.

The Employee Still has a Big Role in the Employment Visa Application Process

Although the employer files the petition, the employee still carries substantial responsibility. Indeed, he or she will play a very big role in the process. Along with other things, the employee must provide documentation proving eligibility for the specific classification. Typically, the non-immigration employee will need to provide evidence that proves things like education credentials, professional licenses, work experience records, and immigration history. Inconsistencies or gaps in the evidence can lead to a delay or even a denial.

After Approval: Consular Processing or Status Changes (There are Still Steps to Go)

Once USCIS approves the employer’s petition, the process is still not complete. If the worker is abroad, the employee applies for the visa at a U.S. consulate. If already in the United States, the employee may seek a change or extension of status. At this stage, government officers review admissibility issues, prior immigration compliance, and security-related factors. In other words, the approval of the employer’s petition does not guarantee that the employment visa will be issued. While it is a very good sign, there are still some additional steps for the non-immigrant employee to satisfy to get an approval of an employment visa.

Note: Once the visa is issued, the employee also bears responsibility for maintaining lawful status and complying with all of the terms.

Contact Our Virginia Employment Visa Lawyer Today

At Escobar Law Offices, our Virginia employment immigration attorney has the knowledge and experience that you can trust. If you have any questions about the application process for an employment visa, we are here as a resource that you can rely on. Contact us today to set up a completely confidential, no obligation initial consultation. We provide employment visa representation throughout Northern Virginia, including in Fairfax, Annandale, and Arlington.

Source:

uscis.gov/working-in-the-united-states