Meeting Immigration Challenges

Ryan Adair, Specialized Legal Services

“I want to hire a Swedish Engineer to work for our company, in Utah,” the HR Manager said with some hesitation. “I just don’t know where to start.”

Finding the right people at the right time to do the right job can be one of the most difficult challenges in HR. The search for qualified employees may take the manager beyond the shores of the United States. Or, it might land her at a university where she finds a talented and ambitious graduate who is a foreign student.

When that happens, the employer runs headfirst into an often expensive, confusing, and frustrating collection of immigration laws and restrictions. Take the H-1B visa program, for example. The H-1B is appropriate for employers who want to employ foreign professionals in positions that require at least a baccalaureate-level education. It is often used for recent foreign graduates who want to remain in the United States and work. The H-1B, though, comes with several challenges. First, there are a limited number of H-1B visas available each year. For the current fiscal year, all H-1B slots have been allocated. So, an employer wishing to hire a new H-1B employee must wait until October 1, 2012, to do so (the employer could petition for the H-1B status as early as April 1, 2012). Second, the H-1B program is fairly rigid. Any change in job location or meaningful change in job duties requires advance approve from immigration officials. Third, the program can be quite expensive, costing most employers $2,325 for each petition.

Another example of an immigration challenge arises when, after employing someone as a nonimmigrant for a period of time, employers are asked to sponsor the employee for permanent resident status. This process costs up to $10,000 and generally requires the employer to prove that it cannot find a minimally-qualified U.S. worker who is ready, willing, and able to do the job. Depending on the standard qualifications for the position and the employee’s country of origin, the permanent residency process might take as long as two decades to complete.

Immigration is one of the most nuanced areas of employment law. Employers that get it wrong can be left without the best choice of employee.  Worse, immigration mistakes can be costly for foreign employees. Fortunately, MSEC is here to help. We have a team of attorneys who practice exclusively in the area of employment-based immigration. As part of your membership, we can provide valuable information to help you make the right staffing choices. Or, if you are ready to move forward with hiring a foreign employee, we can represent you before immigration officials for a fee that is well below market value. For more information, contact us at 800.884.1328.