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Meeting
Staffing Needs with the "Guest Worker Visa"
April
20, 2000
We have all read about
the 18 year-old programmers earning six-figures.
The tight labor market for high-tech talent has been one of
the most publicized human resources phenomena in recent memory,
which some experts predict will continue until at least 2015.
Until then, firms will have to struggle to meet their
staffing needs.
One solution to which many have
turned is the H-1B visa. This
is a temporary visa category that allows employers to import
high-tech talent from abroad to work for up to six years in
"specialty occupations" requiring a bachelor’s degree or
higher.
Popular due to its relatively easy
procedure, the category does, however, have certain requirements.
First, the position must be for a
"specialty occupation" --
a professional position requiring at least a bachelor's
degree. Generally,
high-tech positions easily qualify, as well as, for example,
architects, lawyers, physicians, professors, and some managerial
positions.
Second, the foreign professional
must be a "specialty occupation worker" -- he or she must
actually have the appropriate bachelor's degree (or equivalent
training and experience) plus any license required for the position.
Third, the annual H-1B visa cap
must not have yet been reached. This cap or limit, which is
currently set at only 115,000 visas per year, can present the
biggest hurdle to employers wishing to hire otherwise-qualified
foreign professionals. In
recent years, the cap's effect has been to create a window of only
seven to nine months (starting October 1) during which petitions
could be filed. (This
has been an extremely controversial issue in Congress, and proposed
legislation to increase the cap should go to the Senate floor in
early April.)
The
employer begins the process by determining what is the position's
"prevailing wage" -- the industry-standard wage for that
position in the employer's geographic area.
This information may be obtained from a private wage survey
or a state Employment Security Agency (for example, Maryland's
Department of Labor, Licensing, and Regulation).
The next step is to file a
"Labor Condition Application" (DOL Form ETA 9035) with the
U.S. Department of Labor. With
this form, the employer attests that (1) the foreign professional
will be paid at least 95% of the higher of the prevailing wage and
the actual wage (the wage actually paid by that employer for others
in that position); (2) the employer has notified its other employees
of the intention to employ the H‑1B professional; (3) there is
no strike or lockout at the place of employment; (4) the H‑1B
professional will not adversely affect the working conditions of
U.S. employees; and (5) the employer will keep on file certain
documents related to the Labor Condition Application, and make them
available for inspection by government officials.
Employers that are considered
"H-1B Dependent" are required to make additional
attestations to the effect that they have made good faith efforts to
recruit U.S. workers, and that hiring the foreign professional will
not displace U.S. workers. (H-1B
Dependent employers are those whose staff includes a certain
percentage of H-1B workers, the percentage depending upon total
staff size.)
Failure to comply with these
attestations can lead to hefty penalties.
Once received, the Department of
Labor reviews the Labor Condition Application for completeness or
technical errors, then returns a certified copy to the employer.
The employer then submits it, along with a petition (INS Form
I-129 with H Supplement) to the Immigration and Naturalization
Service. By this
petition, the employer must prove that (1) the employer has a need
for a "specialty occupation worker," (2) the position
offered is a "speciality occupation," and (3) the foreign
professional is qualified for the position.
Although making this proof is often relatively easy, the INS
may request more evidence, or deny the petition if the position or
foreign professional is not considered eligible.
INS denials may be appealed.
For most employers, the visa fee
totals $610 (comprising two separate fees of $110 and $500).
By law, the employer cannot require the H-1B professional to
pay or reimburse the $500 portion of that amount.
The foreign professional may begin
work upon INS approval. However,
he or she may not work for a different employer, or even necessarily
switch positions at the same employer. If the terms of employment change, the professional may be
required to obtain the approval of a new Labor Condition Application
and amended petition, or even approval of a completely new petition,
depending on the nature of the change.
The H-1B visa has proven to be an
effective staffing tool in today's tight labor market.
If Congress decides wisely, this tool will be improved, and
will remain in employers' staffing toolbox for a long time to come.
(I urge you to contact your legislators to voice your
opinion).
FOR MORE INFORMATION:
Contact John Byrley at
tel: 410-719-1501.
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