January 1, 1900

by Ryan A. Marrone

As a result of rapid changes in technology and the development of other specialized business needs, employers in the United States may profit from or require the services of, qualified foreign born professionals. Unfortunately, smaller companies who would greatly benefit from employment of foreign nationals typically do not include immigration as an employment option. These companies generally do not have the resources, knowledge, or full appreciation of the system to properly consider the benefits of immigration or what opportunities are available.

More and more employers are utilizing the immigration laws to their advantage to hire exceptionally skilled workers where there is a shortage in a particular field. These employers benefit by receiving highly qualified employees who are specialists, while paying them no more than the "prevailing wage" rate or "actual wage" for professionals with similar skills. In conjunction with solving a labor shortage problem, the employer also benefits from an extended loyalty with the foreign workers by cultivating an immediate personal relationship through the sponsorship.

Consideration and evaluation of immigration potentials are essential tools which employers can take advantage of when properly advised by counsel. The Hill Wallack Immigration Law Practice Group represents employers in all immigration cases including those involved with foreign professionals, investors, traders, and intracompany transferees. Constant changes in U.S. immigration laws necessitate representation by a legal team which can track and interpret the laws and provide counsel to the specific immigration needs of individuals and employers. Our goal is to meet our client's needs as expeditiously and cost-efficiently as possible by providing specialized, expert analysis as to the benefits of the numerous immigration opportunities available to U.S. employers.

Several Different Visas Available

For qualified foreign professionals, there are several different visas available. Selection of the appropriate visa entails complex analysis of the present individual and corporate needs, in conjunction with the future immigration goals of both parties. The most sought after non-immigrant work visa is the H-1B Temporary Worker Visa.

U.S. employers that want the temporary services of people whose work is classified as a specialty occupation file for the H-1B. "Specialty occupation" means an occupation which requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation, and which requires the attainment of a bachelor's or higher degree as a minimum requirement to perform the job duties. The Department of Labor (DOL) statistics indicate that a large percentage of present day users of this visa type are computer professionals (40%) and health care workers (40%), who are mainly physical therapists. Other professions using the H-1B visa include service professionals, such as engineers, accountants, financial analysts, management consultants, lawyers, architects, physicians, surgeons, scientists, systems analysts, journalists and editors, foreign law advisors, librarians, psychologists, technical publication writers, market research analysts and teachers in elementary or secondary schools, colleges, academies or seminaries.

College Degree and Experience Required

The fundamental requirements for these positions are that the candidates possess the equivalent of at least a U.S. Bachelors Degree, as well as experience relevant to the position for which approval is sought. An H-1B employee may remain in the United States up to six years, and no particular relationship between an employer abroad and a U.S. corporation is required. However, the employee must be licensed under his particular profession in the United States and corresponding state, unless it can be established that such licensure is not necessary. (For example, a foreign engineer working for a U.S. corporation but supervised by a U.S. licensed engineer may be able to avoid the state licensing requirement.) It should be noted that the H-1B visa is often used as the "next step" after one graduates from a university and completes an F-1 or J-1 program.

While the Immigration and Naturalization Service (INS) falls under the jurisdiction of the Department of Justice, almost all employer-sponsored immigration petitions usually start with the DOL. For H-1B petitions, the first step consists of the filing of a Labor Condition Application (LCA) with the DOL prior to submitting the H-1B petition to the INS. The LCA requires that the employer certify that the proposed alien worker will be paid either the ñprevailing wageî rate in the industry for his position or the "actual wage," which is determined by comparison to all other workers in similar jobs as the specialty worker. When represented by the Immigration Law Practice Group, we provide written instructions for the employer to use in determining the actual wage and conduct a prevailing wage study to determine the prevailing wage for the position that the alien would fulfill. Ultimately, the employer will be required to pay the higher of either the prevailing wage or the actual wage.

In addition to promising to pay the higher of the two wages, there are three other attestations which the employer makes. These are that the employment of the foreign worker will not harm the working conditions of similarly employed individuals; that there currently is no strike in progress; and that notice of the filing of the LCA was provided to individuals at the workplace or the applicable Union.

Employer Obligation to Provide Return Transportation for the Alien

Two final obligations of the employer associated with the LCA are certification by the employer that it will pay for the specialty worker's return transportation abroad in the event that the specialty worker is terminated before the expiration of his or her visa status and the creation and maintenance of the LCA and prevailing wage/actual wage public documentation file. Once again, when represented by the Immigration Law Practice Group, we provide the employer with the latter materials and with instructions regarding their creation and retention.

While the employer is waiting for the LCA to get certified, preparations are made to have the petition and supporting documents ready to go when the LCA comes back from the DOL. During this particular portion of the process, care must be taken to complete these documents; otherwise time will be wasted if the INS "bounces" a document for improper completion. In addition to the petition forms, supporting documents must be prepared for submission. One of the key supporting documents is a letter from the petitioning employer which describes the proposed position and details how it qualifies as a specialty occupation. Further, it lays out the qualifications of the foreign worker for the position and provides the terms of employment including the salary and duration. Other documents included with an H-1B petition are diplomas, transcripts and licenses, all of which are designed to show that the foreign worker is qualified to perform the responsibilities required for the job.

Representation by the Immigration Law Practice Group includes preparation of first drafts of all the aforementioned documents for the employer's review, revision and approval. Once final approval is received, we file the LCA, petition and supporting documentation with the DOL and the INS and follow up with those agencies to insure prompt adjudication. Selection of the appropriate non-immigrant work visa for an individual or corporation requires specific analysis of each individual case in conjunction with a thorough understanding of the law. The Immigration Law Practice Group provides this type of representation to all of its' clients whether for the H-1B visa or one of the various other work visas that may be available to foreign professionals.

Ryan A. Marrone is an associate of the firm where he is a member of the Litigation Division, Workers' Compensation Practice Group and the Immigration Law Practice Group.