February 20, 2008

What You Never Knew You Needed to Know About Immigration

Do you have foreign-born professionals as employees? If so, you may be one of hundreds, maybe even thousands of companies that need to immediately think about filing paperwork to keep those employees legally on the payroll.

While many jobs are considered “professional” positions, we are talking about positions that require at least a bachelor’s degree and the employee has the appropriate bachelor’s degree for the position. Accountants, sales directors, and information systems managers are some of the types of positions in a hotel that may be qualified for an H-1B visa.

This H-1B visa allows a person to legally work for a specific employer in a specific job in a specific location in the United States. Unfortunately, the U.S. government only issues 65,000 H-1B visas per year. All the visas become valid beginning October 1 of any given year. However, filing for these visas begins on April 1 of each year. The Citizenship and Immigration Service (CIS) is responsible for reviewing these petitions and approving or denying them. On April 1, 2007, the CIS received approximately 120,000 H-1B petitions for the 65,000 available visas. They conducted a lottery of all petitions received and accepted a little more than 50% of the petitions received. Remember, only the employers that filed on the first day were even in the running for getting an H-1B visa for their employees

If you have a person that may be eligible for one of these coveted visas, you need to act immediately.

When do you do your hiring? If you are thinking you may need one of these professional people in October, would you normally even consider hiring them now, eight months before you want them to start working? The answer needs to be a resounding yes, if you want to obtain that H-1B visa. You need to have these people identified, interviewed, with an offer made and accepted before April 1 in order for the filing to occur. Also, plan on hiring an immigration attorney as early as possible to properly prepare the paperwork for you. Nothing is worse than having the perfect candidate for a position and having the visa denied because the paperwork was not properly prepared or filed.

Season or temporary need workers? Another option exists for companies bringing foreign workers to the United States for seasonal work or to fill a truly temporary need that the employer has. An example of seasonal work is hiring chefs to come during peak tourist season only. These extra chefs are not needed all year long, but just during the seasonal peak. Or, an employer may have a temporary need for employees until a particular job is completed. Imagine your company installs a new computer system. You need the temporary services of a group of computer programmers to design programs for the system and to integrate and implement the new system. Assuming these programmers are direct hires, they would be considered temporary need workers.

An H-2B visa would allow either of these two types of workers to come to the United States to work for a temporary period of time. The time frame allowed on the visa depends upon the season or need for completing the temporary assignment. In no event may the stay be longer than three years. It is especially important to note that this visa is not appropriate for a temporary worker coming to fill a permanent position. (That is an H-1B visa position.) To summarize, this H-2B visa is appropriate for (1) a recurring seasonal need; (2) an intermittent need; (3) a “peak-load” need; or (4) a need based on a one-time occurrence.

Besides the seasonal/temporary requirement for this H-2B visa, the foreign worker cannot be displacing a qualified unemployed U.S. worker. Therefore, the employer must show that there are no U.S. workers available for this position.

The CIS only issues 33,000 H-2B visas twice a year. They accept petitions in the first half of the Federal fiscal year, until this number is exhausted, and then accept petitions again in the second half of the year until the next number is exhausted. These visas have gone quickly each year since 2004. Filing for these visas, which will allow a worker to begin working on October 1, 2008, begins April 1, 2008. It is suggested that they be filed as early as possible so that a visa may be approved.

Immigration is an ever changing area of the law. Incorrect information can result in loss of benefits or opportunities for a foreign national or a company. Therefore, I recommend that you consult with a qualified immigration attorney prior to making any immigration decisions.

By: Martha James