Getting Qualified Employees for Businesses

Posted on March 06, 2007 by Warren Wen | Category: Immigration

What Employers Could Do to Get Qualified Employees When the U.S. Government Tightens the Enforcement of the Immigration Law

Recently, the U.S. government has significantly strengthened its efforts in enforcing the immigration law against the illegal immigrants.  Some examples are: 1) the U.S. government has filed formal charges against several US companies, including Tyson Foods, for hiring illegal immigrants, and 2) the U.S. Senate has recently passed a tough law prohibiting those companies that hire illegal workers from getting any federal government contracts.  These actions from the Executive and legislative branch are unprecedented.  It brings big challenges to companies that have difficulties in finding qualified employees due to obvious labor shortage of qualified U.S. workers. On one hand, some of the employers have no choice but to use some workers who are not clearly authorized to work in order to remain competitive and survive in the industry.  On the other hand, they would have to face monetary sanctions or even criminal consequences in the worst situation if they were found in using illegal immigrants.  Due to this dilemma, it is getting more important for the employers, especially those small or medium sized companies to learn how they could legally bring foreign workers into the U.S. to meet their needs.

First, H-1B visa has been widely known and used by many high tech companies in recruiting people with advanced degrees.  In order for an H-1B visa/status to be approved, the offered position has to be a professional one which requires a bachelor degree as minimum.  The challenges for applying for the H-1B visa are two folds.  First of all, the number of visa currently available for these companies has been drastically reduced from close to 200,000.00 per year to about 65,000.00 a year.   In the recent years, the quota for H-1B has been available for less than a moth each year.  Secondly, because of the educational requirement, many companies cannot use the H-1B program to bring skilled workers with no college degree or unskilled workers to work in the U.S.

In addition to the H-1B program, L visa and J-1 could also allow many companies to bring qualified foreign workers into the U.S.  L visa is used by multinational companies to transferee managers, executives or employees with special skills from overseas to the US.  J-1 has been largely used by multinational companies, universities or other research institutions to bring highly qualified people with advanced degrees.   Nevertheless, as is in other nonimmigrant categories, J-1 visa also has a significant limitation.  J-1 visa can be obtained for training purposes, but the position cannot be unskilled.  This greatly reduces its use in agricultural areas.

For companies in the agricultural industry, especially those in farming businesses, H-2A visa may provide some relief because it allows temporary admission of agricultural workers into the U.S.  The disadvantage of H-2A visa would be that the processing time to obtain the H-2A visa is quite lengthy and time consuming.  The employer would first need to obtain the permission from the Department of Labor to hire the foreign workers, which requires numerous attestations regarding the inability to find U.S. workers and how the foreign workers will be paid and housed while in the U.S.  The employer would also need to show that the need for the position is temporary or seasonal, which alone is often enough to render the category useless for many employers.  While some agricultural areas are clearly seasonal, such as in crop harvesting, others are not.  For example, Tyson and other meat providers generally have the same workload year-round.  It would be almost impossible for them to take the advantage of the opportunities provided by the H-2A visa.

For companies that are not in the agricultural industry, H-2B visa may provide some solutions.  This category allows both skilled and unskilled workers to be employed in a temporary or seasonal position that is not in agriculture.  According to the relevant procedure, H-2B petition first requires the filing of a labor certification with the Department of Labor of State with proper jurisdiction.  The application will then be forwarded to the Federal Department of Labor which will make a determination on whether the need for the worker is temporary. Like that of H-2A, many companies face the same challenges of proving that the need for the position is temporary.  Unknown to a lot of employers, however, H-2B has been successfully used by many restaurants, dry cleaners and construction companies to bring qualified foreign workers into the U.S.  According to some credible reports, more than 50% of the workers in the restaurant and construction business are aliens with no legal status.  Unless these companies could secure a minimum number of legal workers to operate the business, they could easily be forced to shut down when they are investigated or the law is enforced by the USCIS, IRS or the Department of Labor.

In a word, H-1B, L, J-1, H-2A, and H-2B could be used by small and medium sized companies to bring qualified people to work in the U.S.  Each of these types of visa has its unique benefits and disadvantages.  Which one of these visas can be used for a specific company could depend on each company’s needs and requirements.  Due to its challenges and complexities, seeking a professional help is highly recommended, if the company is ready to apply for any of the above visas for their employees.

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.