Understanding Employer-sponsored Work Visa Options

With the US economy growing, accounting, law firms, consultants, advertising agencies, architectural firms, investment banks and other industries have to spend more time and money to find and retain enough employees to handle
the increased workload. In a recent survey of L.A. area executives, finding
and hiring qualified employees was identified as the single biggest challenge
for companies.

The shortage of skilled workers means recruiters are spending more time on college campuses, signing bonuses are being sweetened, and referral bonuses are being offered to current employees. Some of the increased
costs of recruiting and hiring have fixed price tags; others have costs
that are more difficult to calculate.

Gaining access to a deeper pool of talent often requires looking beyond the workface of US Citizens and Permanent Residents. Unfortunately, many employers are not currently taking advantage of pro-employer immigration
legislation.

An understanding of the employer-sponsored work visa options will enable Human Resource Managers to more effectively recruit and retain foreign professionals. There are many different types of visas that a foreign
worker can obtain. Each has it own applications, dates of validity, and
prerequisites. Among these visas are: H-1B, L, F-1,
TN, O, E, J-1, M-1, & B-1, but the most common non-immigrant
work visas are the H1-B, L1, and TN.
They are generally intended for professionals with at least a Bachelors
degree (or work experience equivalent) who have a US employer sponsor
and a job offer for an approved area of work. Most visa applications are
submitted to the U.S. Citizenship and Immigration Services, an agency
within the Department of Homeland Security (DHS).

If the employer wishes to retain the employee long-term, they may provide them with sponsorship for Permanent Residence (PR) resulting in a Green Card. As of March 28, 2005, the Department of Labor (DOL) implemented
a new system called Program Electronic Review Management (PERM) which
constitutes a major change in the Labor Certification (LC) process and
is designed to significantly reduce the processing time of LC applications
for the permanent employment of foreign nationals in the United States.
The previous LC processing system was called Reduction in Recruitment
or “RIR” processing. It is important to understand the options
available to employers for hiring foreign workers and to file visa petitions
appropriately to adhere to the Immigration Reform and Control Act of 1986
which criminalized the act of knowingly hiring an undocumented worker
and established financial and other penalties for those employing them.

In sponsoring an employee applicant, there is always some information about your company and the available position that you will be required to provide to the U.S. Citizenship and Immigration Services (USCIS). It’s
important to recognize that certain information from the company will
be required and that cooperation with your attorney and government agencies
is vital for success in securing the foreign employee.

The information that may be requested for the visa petition, and ultimately shared with USCIS may include the following:

1) Supporting documentation regarding employer’s good-faith recruitment efforts

2) Documentation on the working conditions in the occupation and industry
3) The specifics of the job opportunity such as the position description
4) The salary (which must meet the Prevailing Wage Requirement)
5) Documentation on your company’s number of layoffs and categories
of layoffs
6) Company tax returns or audited financial records

Within the past six months, the U.S. Department of Homeland Security’s Immigration & Customs Enforcement Section (ICE) conducted massive efforts to round up illegal foreign nationals throughout many states. ICE
then filed criminal charges against the executives and managers of companies
employing these workers. Some of these companies have been under investigation
for many months for allegedly hiring illegal workers, providing them with
housing and making unlawful deductions from their pay. Interestingly,
the proposed Guest Worker Program, if enacted into law, would provide
protection to the majority of the illegal workers. Again, it is important
to stress adherence to the Immigration Reform and Control Act of 1986
and particularly to its record keeping requirements.

For companies wishing to gain access to global talent, the visa options for foreign workers can be attractive to the long-term interests of the company. It is important to recognize how the immigration options available
can assist with hiring and recruiting and benefit your organization overall.
The immigration laws and polices are complex and ever-changing and, therefore,
we advise seeking an experienced immigration attorney who will listen
to your concerns, answer all your questions, and expertly advise you on
immigration matters as they pertain to your hiring and recruiting efforts.