Workforce

Explore Legal Immigration Options for Construction Companies

Although visa options are limited, there are some that can be explored by contractors.
By Megan R. Naughton
August 9, 2022
Topics
Workforce

Although the visa options are limited, there are some that can be explored by construction companies in the United States, including the following.

H-1B

The H-1B visa category may be available for construction positions that require at least a bachelor’s degree in a specific field such as civil engineering, construction management or accounting. The timing can be challenging if an employer is looking to hire a recent graduate or someone outside of the United States for a role because of the H-1B lottery but can work well if the candidate is already in H-1B status and working for another company. These visas are site-specific, so they may need amending if a worker is moved from one site to another.

H-2B

The H-2B visa category is an option if the construction work is seasonal in nature and recurs each year, and if the company can plan its specific needs sufficiently far in advance. Timing is difficult with these; they require proving a shortage of U.S. workers and are subject to a lottery system like the H-1B.

TN

Civil and construction engineers from either Canada or Mexico may be eligible to use TN status to work in the United States. TN status allows people with certain qualifications, primarily bachelor’s degrees, to work in certain occupations. These occupations include architects, engineers, foresters, geologists, landscape architects and land surveyors as well as accountants and computer systems analysts, among others.

E-2

The E-2 visa is an option for specialists/essential workers and managers if the U.S. company is owned by nationals of a country with which the United States has a treaty, including Italy, the U.K., Germany, Canada, the Philippines and many others. See the following link for a comprehensive list. If all E-2 company requirements are met in terms of ownership, investment and doing business in the United States, the company can bring in workers as long as they are of the same nationality as the treaty country and qualify as a specialist/essential worker or manager/supervisor.

L-1

The L-1 visa category is also an option for either specialized knowledge workers (L-1B) or multinational managers/executives (L-1A). To qualify, the employee must be working for at least one continuous year on a full-time basis for a company outside of the United States that is related to the U.S. company. The employee must be a manager, executive or specialized knowledge worker in the country outside of the United States and be coming to the United States in the same capacity. These petitions/applications are highly scrutinized for eligibility.

O-1

Those who have reached the pinnacle of their field and achieved either national or international acclaim may be eligible to petition for O-1 status to work in the United States. This could be a good fit for someone who is leading large infrastructure projects with a track record of success and discussion of their work. It is not commonly used for construction, but it is an option if the evidence can support it.

B-1

This is the most misused visa category for work in the United States. People in the United States in B status are not authorized to work. This is true even if they are on a foreign payroll or being paid as a contractor. It is not a work-authorized status and should not be used, no matter how brief the assignment.

Green card sponsorship via PERM labor certification

The green card route most often involves proving a shortage of U.S. workers through an advertising campaign. The employer must identify the worker or workers to be sponsored, obtain an official prevailing wage determination from the U.S. Department of Labor, post legal notice and conduct an ad campaign to demonstrate the shortage. Then, if no qualified, able, willing or available U.S. workers apply, the application can be filed. From beginning to end this process typically takes well over one year to complete and is followed by additional processing with the U.S. Citizenship and Immigration Services and sometimes also the U.S. Department of State, which can take additional months or even years. This is a good route for someone already in the U.S. working for the company in H-1B status and might be a good route into the United States for a skilled tradesperson interested in working in the United States in the future. However, once in the United States as a permanent resident, the employee can then work for any employer they choose, which sometimes can make it a risky proposition for employers.

by Megan R. Naughton
Megan R. Naughton is co-chair of Robinson+Cole’s immigration group and has more than two decades of experience handling U.S. business immigration matters. She represents a wide range of clients, from startup to Fortune 500 companies, in a variety of industries, including financial services, insurance, technology, manufacturing and higher education.

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