Immigration: The Basics for Employers

This article is about Justworks PEO. What product am I using?

Overview 

Navigating U.S. immigration and work authorization can be complex, but understanding the basics is essential for building and supporting a diverse workforce. This guide covers Form I-9 requirements, employment eligibility, common visa types, hiring best practices, and work authorization documentation. Whether you're hiring someone on a temporary visa or considering long-term sponsorship, these fundamentals can help you stay compliant with federal regulations and anti-discrimination laws.

What is a Visa?

A visa is a legal document that allows a foreign national to travel to and request entry into the U.S. for a specific purpose (such as for work, study, or tourism). A visa alone does not grant work authorization in the U.S. and a separate work authorization may be required.

Understanding Work Visa Categories

There are generally two different types of visas: Immigrant Visa and Nonimmigrant Visa. Each of these categories determine which work authorization documents may be required and the amount of time an individual may live and work in the U.S. 

• Immigrant Visas (Permanent): Employees in this category are authorized to live and work in the U.S. indefinitely. These individuals may often be referred to as green card holders, and employers generally do not need to sponsor or reverify their work authorization.
• Nonimmigrant Visas (Temporary): These visas generally allow individuals to work in the U.S. for a specified period of time. In many cases, employers must sponsor or file a petition on behalf of the employee and track expiration dates for work authorization. Most employers will interact more frequently with temporary (nonimmigrant) visas, especially when hiring for specialized or short-term roles.

Common Nonimmigrant Visa Types

While there are many different types of nonimmigrant visas available for foreign nationals, the following are the categories most frequently encountered by employers in the U.S. workforce. It is important to note that this list is not exhaustive, and other specialized visa types may exist depending on an individual's specific qualifications or the nature of their role.

* CPT = Curricular Practical Training

* OPT = Optional Practical Training

* STEM = Science, Technology, Engineering Mathematics 

Note: Not all visa types require employer sponsorship, but many do. Requirements and timelines can vary depending on the visa. For example, H-1B visas require sponsorship, which includes filing petitions and covering certain costs. Others (like F-1 OPT) are already authorized for work without employer sponsorship. 

Hiring Best Practices

What You Can (and Can't) Ask

When interviewing candidates, consistency matters. Asking the same, job related questions across the board helps keep the hiring process fair and aligned with anti-discrimination laws. Questions about citizenship or immigration status such as “Are you a U.S. citizen?” or “What is your immigration status?” can create compliance risks and should be avoided.

Instead, focus on work authorization in a way that’s clear and consistent for every candidate:

• “Are you legally authorized to work in the United States?”
• “Will you now or in the future require employer sponsorship?”

Adding these questions to your standard application or screening process can help you stay organized and treat every candidate the same way. It’s a simple step that supports a more consistent, compliant hiring process, so you can move forward with confidence.

Verifying Work Authorization (Form I-9 Basics)

After hiring an employee, employers are required to verify their identity and authorization to work in the U.S. using Form I-9. Here’s what to know:

• Section 1 of the Form I-9 is completed by the employee (regardless of their status) on their first day of work.
• Section 2 of the Form I-9 is completed by the employer within three business days of the employee's start date by verifying identity and work authorization documents.
• For employees with temporary work authorization, employers may need to reverify before their authorization expires, so it’s important to track document expiration dates.

For step-by-step guidance, the U.S. Citizenship and Immigration Services (USCIS) Handbook for Employers (M-274) is the official resource.

I-9 Documents for Common Visa Types

When completing Form I-9, many foreign nationals will present List A documents, which verify both identity and work authorization at the same time. The exact combination of documents depends on the individual’s visa status. Below are common visa types and the corresponding documents typically presented for Form I-9.

All documents must be presented together (where applicable) and be unexpired to be considered valid. For additional guidance, refer to the List of Acceptable Documents. Employees can also access their current I-94 Arrival Record online.

Immigration and Work Authorization FAQs:

Do I need to register for E-Verify? 

It depends on your location and the employees you hire. E-Verify is required for federal contractors with certain government contracts, for employers of F-1 students on STEM OPT, and for employers in states that mandate it. Sponsoring an H-1B employee does not, on its own, trigger a federal E-Verify requirement. If your company separately holds a covered federal contract or operates in a state with its own mandate, that requirement applies regardless of whether you sponsor H-1Bs. Even if it isn't required for your business, using E-Verify is a great way to confirm work eligibility and minimize compliance risks. For more information on E-Verify requirements: E-Verify.

Do my international employees require a visa to travel to the U.S. for short meetings?

Employees from participating countries with a Visa Waiver Program (VWP) can usually visit for up to 90 days for business activities (like meetings or training) without a visa. They’ll just need to apply for ESTA authorization before they head out. Employees from non-VWP countries will typically need a Business Visitor (B1) visa for the same types of short-term trips. You’ll want to remember that these options are for "business activities" only. If your employee will be performing actual work or being paid by a U.S. entity, you'll likely need a different visa category.

Does my U.S. based employee need a visa to travel and work abroad? 

Possibly. Just like the U.S., every country has its own set of rules. While a quick trip for a conference might fall under "business visitor" rules, performing ongoing work or joining a local team usually requires a specific work authorization.

Beyond the visa, keep in mind that having an employee work from another country can trigger local tax and employment law obligations. If you're looking to hire or support long-term remote work internationally, our Employer of Record (EOR) services can help handle the payroll, benefits, and compliance for you.

Are visa holders exempt from FICA and FUTA taxes?

Sometimes.While resident aliens generally have the same tax obligations as U.S. citizens, certain nonresident aliens, specifically those on J-1 or F-1 visas, may be exempt from FICA (Social Security and Medicare) and FUTA (unemployment) taxes. This exemption typically applies if the work is performed as part of the specific purpose for which the visa was issued, and generally only while the person is new to the U.S. Once someone on an F-1 or J-1 visa has lived in the U.S. long enough to be considered a tax resident (usually a few years in), this exemption no longer applies, even if they're still on the same visa.Because tax laws are nuanced, we recommend consulting a tax professional to determine if a specific employee qualifies for an exemption. For more information, check out our Help Center article on Foreign National Taxes.

When should I work with immigration legal counsel?

Since every individual’s situation is unique, we encourage you to consult with an immigration attorney for specialized guidance in conjunction with the support Justworks offers. While this guide provides a fundamental overview, legal counsel can help you navigate specific requirements and nuanced circumstances that may arise.

Other Resources

• H-1B Visa
• E-Verify
• Form I-9: What You Need to Know as an Employer
• Foreign National Taxes
• Potential Benefits of E-Verify for Employers

Justworks Support

Justworks can support you with immigration-related best practices, including Form I-9 compliance and general guidance on sponsoring employees.We can also help to make sure that your team members are set up with the correct member types for tax and compliance purposes, including FICA or FUTA tax exemptions. If you have questions, please contact Justworks Support or your Customer Success Manager. 

Disclaimer

This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for accounting, legal or tax advice. If you have any legal or tax questions regarding this content or related issues, then you should consult with your professional legal or tax advisor.