In today's world of complex Immigration Laws, senate reform proposals, and immigrant rights debates, many U.S. employers continue to have a genuine need for qualified foreign professional workers. Employing these professionals enables U.S. businesses to expand and stimulates U.S. economic growth. It is estimated that by 2010, with the Baby Boomer population retiring, the need for immigrant workers will increase and 22 million jobs will be held by immigrants. Immigrants contribute to the economy in numerous ways including taxes and social security contributions.

An understanding of the employer-sponsored work visa options will enable Human Resource Managers to more effectively recruit and retain foreign professional workers while gaining access to a deeper pool of talented professionals. But what impact will immigration reforms have on US employers? The proposed changes to Immigration laws and polices will undoubtedly affect American employers, recruiters, and HR professionals.

Immigration affect on high-growth sectors:
In high growth industries such as Biotech, there continues to be a shortage of skilled American professionals. These companies require skilled professionals to contribute to scientific advancements and help US companies maintain a global competitive advantage. What happens when foreign talent is not leveraged by US companies? Outsourcing. Outsourcing is a direct result of US employers' frustration with Immigration barriers and visa caps. These companies require the best in the world to compete, and when they cannot bring those folks here, they effectively take their company to those foreign workers by setting up businesses in their home countries.

As more companies contemplate Globalization, they recognize the need to become better equipped with diverse human capital to compete within the Global business ecosystem and improve the ease of doing business with their customers. Both around the world and at home, accommodating the unique tastes of consumers - cultures, languages, customs and traditions - that make up a diverse customer base are becoming increasingly important competitive advantages.

Employer-sponsored Visas:
There are many different types of visas that a foreign worker can obtain. Each has it own applications, dates of validity, and prerequisites. Among these visas are: H-1B, L, F-1, TN, O, E, J-1, M-1, & B-1, but the most common non-immigrant work visas are the H1-B, L1, and TN. They are generally intended for professionals with at least a Bachelors degree (or work experience equivalent) who have a US employer sponsor and a job offer for an approved area of work. Most visa applications are submitted to the U.S. Citizenship and Immigration Services which is an agency within the Department of Homeland Security (DHS).

If the employer wishes to retain the employee long-term, they may provide them with sponsorship for Permanent Residence (PR) resulting in a Green Card. As of March 28, 2005, the Department of Labor (DOL) implemented a new system called Program Electronic Review Management (PERM) which constitutes a major change in the Labor Certification (LC) process and is designed to significantly reduce the processing time of LC applications for the permanent employment of foreign nationals in the United States. The previous LC processing system was called Reduction in Recruitment or "RIR" processing. It is important understand the options available to employers for hiring foreign workers and to file visa petitions appropriately to adhere to the Immigration Reform and Control Act of 1986 which criminalized the act of knowingly hiring an undocumented worker and established financial and other penalties for those employing them.

Professionals from Mexico and Canada:
Canadian and Mexican nationals are eligible to work in the US on a TN visa (in addition to other work visas) under provisions of the North American Free-Trade Agreement (NAFTA). While the TN visa has its own prerequisite, it is often a good option for US employers wishing to hire Canadian or Mexican professionals in certain specially occupations for a finite period of time. A TN visa is valid for 1 year and can be renewed indefinitely. Since the TN visa does not have Dual Intent, the employee needs to demonstrate continuing ties to their home country.

The proposed Guest Worker Program:
This compromise legislation modifies the Guest Worker Program and the Conditional Nonimmigrant Worker Programs. At this point, we are still waiting to see what the full text of this Senate compromise immigration reform legislation will contain.

In the mean time, the immigration reform legislation currently favored by the House of Representatives is almost completely enforcement-based and advocates, among its stringent provisions, mass deportation, non-compliance penalties, additional employer sanctions, and further building of a wall along the U.S. and Mexico border.

Although the Senate compromise is quite significant, once the full U.S. Senate approves this bill it must still be reconciled with the "enforcement-only" bill passed by the House of Representatives last December. In other words, this Senate compromise legislation must next be approved by the House/Senate conference committee by a 2/3 majority, before it can be presented to President Bush for signature. Then, and only then, will this legislation become law.

Sharing documentation:
In sponsoring an employee applicant, there is always some information about your company and the available position that you will be required to provide to the U.S. Citizenship and Immigration Services (USCIS). It's important to recognize that certain information from the company will be required and that cooperation with you attorney and government agencies is vital for success in securing the foreign employee. The information that may be requested for the visa petition, and ultimately shared with USCIS may include the following:

1. Supporting documentation regarding employer's good-faith recruitment efforts
2. Documentation on the working conditions in the occupation and industry
3. The specifics of the job opportunity such as the position description
4. The salary which must meet the Prevailing Wage Requirement
5. Documentation on your company's number of layoffs and categories of layoffs
6. Company tax returns or audited financial records

Potential concerns:
Within the past few month, the U.S. Department of Homeland Security's Immigration & Customs Enforcement Section (ICE) conducted massive efforts to round illegal foreign nationals throughout many states. ICE then filed criminal charges against the executives and managers of companies employing these workers. Some of these companies have been under investigation for many months, allegedly hiring illegal workers, providing them with housing and making unlawful deductions from their pay. Interestingly, the proposed Guest Worker Program, if enacted into law, would provide protection to the majority of the illegal workers. Again, it is important to stress adherence to the Immigration Reform and Control Act of 1986 and particularly to its record keeping requirements.

For companies wishing to gain access to global talent, the visas options for foreign workers can be attractive to the long-term interests of the company. It is important to recognize how the immigration options available can assist with hiring and recruiting and benefit your organization overall. The immigration laws and polices are complex and ever-changing and, therefore, we advise seeking an experienced immigration attorney who will listen to your concerns, answer all your questions, and expertly advise on your immigration matters as it pertains to your hiring and recruiting efforts.

About the Author: James Root

Root Law Group is a full service, exclusive immigration law firm which handles cases in all areas of immigration and nationality law. James Root, principal attorney for Root Law Group, has dedicated his entire legal career to fighting for and protecting the rights of U.S. immigrants and their U.S. employers. He is proactive in advocating reforms to the U.S. immigration laws and policies, especially those affecting professional workers and their immediate family members.

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