Immigration, Employer Focus - An Overview

Immigration law is central to many employers' concerns. It is an area that has become increasingly important in the past few years. Immigration law and the agencies charged with implementing and overseeing US immigration policy have undergone dramatic changes and restructuring. Given the complexity of this type of law and the impact it can have on businesses both large and small, it is important for employers to be well advised on immigration issues. For more information on employment-related immigration matters, contact an attorney at our firm today.

The Intersection of Immigration and Employment

There may be times when an employer cannot fill an open position with US workers or find US workers qualified for certain occupations. When this occurs, employers may seek to hire foreign nationals to supplement their workforce. Depending on their needs, employers may choose to hire a foreign worker for a limited amount of time, such as for temporary or seasonal work, or may choose to hire a foreign worker to fill a permanent position.

In most cases, whether the employment will be temporary or permanent, the employer will have to work with several US government agencies to secure permission for the foreign national to enter the United States, including the Department of Labor, the US Citizenship and Immigration Services and the Department of State.

Sponsoring an Employee for Permanent Employment

The first step an employer must take to hire a foreign national for full-time employment is to determine for which category of employment-based visa the worker is eligible. There are currently four categories:

• EB-1 Priority workers
• EB-2 Professionals with advanced degrees or persons with exceptional ability
• EB-3 Professional, skilled or other workers
• EB-4 Special immigrants

Once the employer has determined the appropriate visa category, in most cases, employers next must gain labor certification from the US Department of Labor (DOL) prior to applying for visas for the workers. The purpose of the labor certification is to prove there are no able, willing, qualified and available US workers for the position and that by hiring foreign nationals, the working conditions and wages of US workers similarly employed will not be adversely affected.

To be eligible for the labor certification process, employers have a burden to prove:

• The position is a full-time, permanent position
• The position has been made available to US workers
• The job requirements are those customarily required for such a position and have not been changed to meet the qualifications of the foreign worker
• The employer is paying the prevailing wages for the occupation in accordance with the job duties and geographic location of the position

Additionally, the employer must provide a recruitment report which specifically details the actions taken by the employer to recruit US workers for the job, provides the number of US workers that were interviewed for the job, explains why the US workers were not qualified for the job or were otherwise rejected, among other information. Employers also must provide a prevailing wage assessment, which can be obtained from the State Workforce Agency (SWA) with jurisdiction over the location of the employment.

If the DOL provides the labor certification, the next step employers must complete is submitting an Immigrant Petition for an Alien Worker to the appropriate US Citizenship and Immigration Services center. Upon approval of the petition, the foreign nationals will be assigned visa numbers by the US Department of State.

PERM Process

To streamline the process employers must use to gain labor certification for foreign workers for permanent positions, the Department of Labor instituted a new system called PERM in March 2005. The PERM system is not available to employers seeking to hire temporary workers, who will have to apply and be approved for nonimmigrant visas.

The federal government passed certain regulations as part of the PERM process, which requires employers to follow specific rules in recruiting US workers and documenting their recruitment efforts. The PERM regulations are located in Title 20 of the CFR, Part 656. It is important that employers understand these regulations and adhere to them. Otherwise, their applications for labor certification could be delayed or denied. Additionally, the materials needed to complete the PERM process can be audited up to five years after an employer has submitted the application and been approved for labor certification.

Hiring Temporary Help

The process for employers seeking to hire temporary foreign workers is similar to the process used to hire permanent employees. In most cases, the employer will be required to file a certification request with the Department of Labor (the type of request can vary by the class of temporary worker), followed by a Petition for a Nonimmigrant Worker with the USCIS.

If both requests are approved and the worker currently lives outside the US, the worker must then apply for a nonimmigrant visa for temporary work with the US consulate or embassy located in his or her home country. As part of the nonimmigrant visa process, the worker will have to submit to an in-person interview with a consulate or embassy officer. During the interview, the worker should be prepared to answer questions about his or her background, application, future employment duties and intention to return home upon completion of the temporary work assignment.

If the worker is currently residing in the US on a current nonimmigrant visa, the employer will need to file an Application to Extend/Change Nonimmigrant (form I-539) in addition to the Petition for a Nonimmigrant Worker. The worker will not be required to submit a new application for a nonimmigrant visa unless the I-539 form is rejected.

Conclusion

Hiring foreign workers for temporary or permanent US employment can be a great way for employers to supplement their workforce, but the process for hiring these workers can be tedious and time-consuming. Contact an immigration attorney at our firm for experienced help with all of your employment-related immigration needs.

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