Suppose your company has a computer engineering position that it has been trying to fill for several months with no success. Suddenly, you’re contacted by a dream applicant ― someone with an excellent educational record from the local university, relevant job experience, and attractive personal qualities. Let’s call this applicant Manesh. He is a citizen of India and is about to graduate with a master’s degree in computer engineering. He has been in the United States on a student visa for the last three years. The manager of the department with the vacancy is anxious to hire Manesh. You realize that hiring a foreign professional is more complicated than hiring a U.S. citizen, but your competitors seem to be doing it. How do you get started? This article answers the basic questions.
Temporary nonimmigrant work status for professionals
Foreign professionals who are interested in working in the United States may qualify to do so as (1) a prospective permanent immigrant (e.g., someone whose goal is to obtain a green card) or (2) a temporary nonimmigrant worker for a limited number of years. In some cases, a foreign worker may have “dual intent” ― that is, he intends to work temporarily in the United States and return to his home country when his nonimmigrant status expires and remain in the United States permanently if permanent resident status is approved during his period of nonimmigrant classification.
The application for temporary nonimmigrant work status is made by the employe. While Manesh will have to provide you with proof of his credentials and other documentation, your company must apply to U.S. immigration authorities for permission to hire him. The status typically sought for foreign professionals is H-1B status, named for the section of the Immigration and Nationality Act (INA) in which the status is described. H-1B status is approved initially for a three-year period and can be extended for another three years. Many H-1B workers have dual intent and apply for permanent status soon after the start of their H-1B employment.
Your ability to hire a foreign professional in the H-1B category depends on whether the job vacancy is a “specialty occupation” (i.e., a job requiring theoretical and practical application of a body of highly specialized knowledge). Examples are jobs in architecture, engineering, law, accounting, and medicine. A specialty occupation requires the attainment of at least a bachelor’s degree, which Manesh will have to produce if he plans to get hired. Often, a foreign student in a U.S. graduate school will have obtained a bachelor’s degree in his home country and must supply the diploma from the foreign university.
The process of applying for and obtaining approval of an H-1B visa is governed by at least two (and sometimes three) different government agencies. Regulations describing the process are complex and change frequently. There is a numeric limit on the number of H-1B petitions that can be granted in any one year. Currently, the limit is 65,000. The year begins on the first day of the government’s fiscal year, October 1, so it’s wise to submit an H-1B petition as soon as you can after October 1 to avoid the possibility that the limit will be reached before your company’s petition can be approved. Manesh might be exempt from the numeric limitation because he will have earned a master’s degree from a U.S. university. This exemption was added in recent amendments to the H-1B program to expand the ability of U.S. businesses to use highly educated foreign talent.
The LCA
The first step in the process is to obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor (DOL). To submit an LCA, you must obtain the occupation’s prevailing wage determination from the DOL or determine the prevailing wage based on an appropriate wage survey. Labor groups that oppose H-1B visas argue that foreign workers are underpaid based on the U.S. market and therefore undermine the market. An important part of an LCA is the employer’s promise to pay the prevailing wage or the actual wage paid to other employees in the same category, whichever is higher. An LCA is submitted on Form ETA 9035, available from the DOL’s website at www.foreignlaborcert.doleta.gov/preh1bform.cfm.
H-1B workers may not be used to replace U.S. workers absent from the job because of a labor dispute, such as a strike, so you must certify there are no such issues at the location where an H-1B worker will be employed. If a labor union represents employees in the same class in which an H-1B worker will work, it must be given notice of the LCA filing.
If there is no union, which is most likely the case with professionals, you must give notice of the LCA by posting it for a certain period at the place where the H-1B worker will be employed. LCAs are supposed to be certified within seven days of filing, and the DOL is forbidden from challenging the truthfulness or accuracy of the assertions made by the employer. Rather, it is limited to determining that all the required statements have been made by the employer on the form. However, there are compliance investigation procedures and penalties to minimize falsification of an LCA.
H-1B petitions
Once an employer receives a certified LCA back from the DOL, it must be attached to the H-1B petition submitted to the U.S. Citizenship and Immigration Services (USCIS) at the U.S. Department of Homeland Security (DHS). The petition is submitted on Form I-129 and supplemented by a separate form providing information unique to the H-1B requirements of law. Form I-129 requires the employer to describe:
- The job and how it qualifies as a specialty occupation;
- The foreign worker’s qualifications; and
- The foreign worker’s current and past immigration status.
On the same form, you would disclose that Manesh is currently attending the local university on a student visa, most likely in category F-1.
It may take several months for USCIS approval. In the meantime, Manesh may not start work for your company. The law doesn’t permit employing a foreign worker simply because he has applied for H-1B status; the application must be approved. Another application (Form I-539) changing Manesh’s status from that of an F-1 student to an H-1B employee also must be filed. The application is usually filed simultaneously with the I-129. If both are approved, the result is the issuance of a work authorization document establishing the initial period during which Manesh may work for your company as a computer engineer.
Manesh’s H-1B status is unique to your company, meaning he may not take the approval and work authorization your company obtained for him and use it to work for another company. However, he may leave your company and work for another so long as the new employer applies for and obtains authorization based on the specifics of the new job. In that way, the maximum six-year limit on Manesh’s H-1B status is portable from one employer to another.
Wrap-up
The procedures for obtaining approval to hire a foreign professional are complex. There are literally hundreds of ways to make a mistake, any one of which can cost valuable time in filling your professional vacancy. Assistance from immigration counsel is highly recommended. Once the regulations are successfully navigated, your company can take advantage of a feature of U.S. law designed to assist businesses in filling professional positions when there is a dearth of available U.S. workers.
Neal Barkus is an attorney with Steptoe & Johnson in Martinsburg, West Virgina. He focuses his practice on advising business management on employment issues, including employment discrimination, trade secrets and employee competition issues, union avoidance strategy and training, collective bargaining, grievance arbitration, and executive retention, dismissal and compensation. He can be contacted at neal.barkus@steptoe-johnson.com.