Visas Open the Way to International Hires
Published: Mar 10, 2009
The solution? Employers are looking beyond U.S.borders for talent. Highly specialized workers can befound in other countries such as China, India andCanada through various specialized web sites orcontract recruiters, for example, but the problem ishow to get them here once you find them. It'sobviously more complicated than offering foreignemployees jobs and buying them airplane tickets.There's the not-so-little matter of legalitiesinvolved.
In short, the problem is getting a visa.
Although there are different types of non-immigrant,temporary visas under which a foreigner can enter theUnited States, such as business (B1), visitor ortourist (B2), a student (F1) or an employee (E, H, L,etc.), the most popular is the H-1B visa. The H-1B,which was created in 1990, is a visa program thatgives U.S. employers the opportunity to temporarilyhire specialized foreign workers such as accountants,software engineers, industrial designers orscientists. The most popular aspect of the H-1B visaright now is the designation for technical workers,but there are other types of workers who can come inon an H-1B such as architects and bankers. There mustbe a qualified U.S. employer who "sponsors" theemployee to come to the States for a specific job thatcannot be filled by a U.S. citizen.
~Generally, the initial petition is approved for oneyear but it may be approved for as many as threeyears. After that, a period of three to six years, ormore, may be approved. After six years, however, theworker must spend one year outside the United Statesbefore being entitled to obtain another H1-B visa.
Many workers who are working in the United States onH1-B visas apply for, and obtain, permanent residentvisas ("green cards") during their initial stay in theStates. However, there's also a waiting period andlimits for green cards which are also frustratingemployers and their foreign temps who must leave thecountry after six years for one year, before they canreturn again on another H-1B visa.
According to website information from the law officeof Sheela Murthy, an immigration attorney based inOwings Mills, Maryland, a U.S. employer can file anH-1B petition for a foreign worker if it follows theserequirements:
1) Provides a job that's temporary in nature.
2) Seeks to hire a foreign national who possesses aminimum of a university degree in the specialtyoccupation, and the degree is equivalent to a degreefrom an accredited U.S. university.
3) Pays a salary that's equivalent to the prevailingU.S. wage rate for employees similarly situated.
The employer must prepare and file a Labor ConditionAttestation (LCA) with the Department of Labor (DOL).The LCA is a form that must be posted in twoconspicuous places at the work site and describe theposition, salary, working conditions, labor conditionsand so on. Once the LCA is approved, the employerfiles a petition with the U.S. Immigration andNaturalization Service (INS). The employer mustdocument that the position requires the services of aperson in a "specialty occupation."
~Visa processing moves at a snail's pace. The problem is, notonly are the annual H-1B visa quotas being met fastereach year, it's taking the INS longer to processvisas. It used to take, for example, two to threeweeks to obtain an H-1B visa. Now it can take as longas five months for applications filed in such statesas California, Washington and Oregon. That's becausethere's a backlog of more than 30,000 applications forH-1B visas that probably won't be processed this year.This is the second year in a row in which the maximumnumber of H-1B applications has been reached beforethe end of the INS fiscal year, which is October 1 toSeptember 30. Last year, the maximum was reached byJune. This year it was reached by February. You couldsay these visas are going like hotcakes.
And the annual cap, which stands at 115,000 for 2000, is setto decrease to 107,500 for fiscal year 2001 and 65,000for fiscal year 2002 and thereafter, unlesslegislation is passed that will increase the limits ordo away with the limits altogether. There are at leastthree visa-related bills now pending in Congress.One such bill being proposed on Capitol Hill is (S.2045) the "American Competitiveness in the 21stCentury Act of 2000," which attempts to solve the H-1Bvisa problem by allowing countries such as India andChina to dip into the quotas reserved for othercountries, some of which never hit their cap on H-1Bvisas. It would also temporarily increase the cap forthe years 2000 to 2002, to 195,000 visas.While American businesses await new legislativeremedies, HR is still left with open jobs in one hand,and visa applications in the other hand.
Is there anything HR managers can do to speed theprocess? "We always use an immigration attorney, butthe process is still quite cumbersome," says SallyPrice, human resources manager for Applied DynamicsInternational based in Ann Arbor, Michigan. AppliedDynamics is a software development company that hirescomputer engineers on an as-needed basis. "In mostcases, our candidates are recent graduates withMaster's degrees that are on student visas. They canwork for you under a student-training visa for oneyear, but must have their H-1B processed prior to theend of that year. Depending on the time it takes tocomplete the paperwork, process the prevailing wagerequirement and the backlog of applications at theINS, it can easily take four to six months to get itcompleted." Adds Price: "It can be a difficult anddrawn-out process."
~Here are some tips that may help speed the process.You may find it interesting to note that the NorthAmerican Free Trade Agreement (NAFTA) has a visaprogram, the H-1 program (not related to the H-1Bprogram) under which technical people can come downfrom Canada and work in U.S. jobs. "The INS can handlethem very quickly from Canada," says John Speidel, aPomona, California-based business consultant who hasworked in international business for 30 years.Speidel's firm, Creative Concepts, has helpedcompanies through the visa process and other businessconcerns since the '70s.
"Another way to process them more quickly, is, if theperson's not from China, they can come in on a B-1 visa(a visitor's visa)," Speidel explains. "The personcomes in for as few as six months and then can ask forspecial handling under the H-1B program." The workerpays the INS $1,000, and his or her visa is taken outof order and goes to the head of the pack. The key is,if the person is in the United States on the visitor'svisa when applying for the change in visa status, theprocess is much quicker because they skip the usualstep of having to interview at the embassy in theircountry of origin. "It saves about two months in theprocess," says Speidel.
Another time-saver in the visa-application process issimply where you send the application. For example, ifyou send the application to an INS office in theMidwest, the processing time will be a lot quickerthan if you send it to an overburdened Los Angelesoffice. "We just processed an application for someonefrom Vermont in an Ohio INS facility, and it only tookthree weeks because they don't have as many in thepipeline," says Speidel. Because visa processing isfederal business, applications can be processed at anyINS office.
~Getting through the seemingly complicated visa processcan take a bit of know-how. But HR pros who learn theropes can help their companies staff up with foreignworkers who have the right stuff.
Jennifer Laabs is an independent business writer basedin Newbury Park, California. She is a former editorwith Workforce, a human resources trade magazine, andhas won numerous awards and professional recognitionfor her work in business journalism. E-mailjenlaabs@yahoo.com to comment.