Are Foreign Nationals Still Viable Candidates?

It is, in many respects, both the best of times and the worst of times for recruiting foreign nationals in the U.S. Most of the traditional sectors that employ foreign nationals have been severely hit by the economic downturn. Instead of hiring hardware or software engineers on H-1B visas, many high-tech companies are laying them off (the notable exception to this trend is the employment of foreign national registered nurses). New legislation, such as the USA Patriot Act, has mandated tighter controls and the tracking of foreign nationals entering the U.S. Recently, the INS has also announced special registration requirements for nationals of several countries, including Saudi Arabia, Yemen, and Pakistan. The INS itself is in the process of being restructured out of existence and having its functions assumed by a new Homeland Security Agency. Most professionals in the corporate immigration area believe that there will be increased immigration-relating reporting and compliance for American corporations in the future. So why would any recruiter in their right mind consider a foreign national candidate? To begin with, the quality and quantity of available foreign national candidates is at an all-time high. Unlike in the past, a significant percentage of available foreign national candidates now have several years of directly relevant U.S. industry experience under their belts. More importantly, a whole series of changes mandated by the American Competitiveness in the 21st Century Act (AC21) have dramatically sped up the immigration processing times. In the past, foreign national candidates were almost automatically excluded from consideration where a position needed to be filled in a relatively short time frame. Due to the following changes, a foreign national candidate is now a viable option for a position that needs to be filled in a matter of a few weeks, or even days. If your company is facing talent shortages and considering the possibility of hiring foreign nationals, you may want to consider the following important points as you make your way through the decision process:

  • Express processing of H-1B visa petitions is now available through a special INS Premium processing unit. Most petitions are processed in a few days, with a guaranteed maximum processing time. This is available for foreign national candidates who are outside the U.S. and those who are inside the U.S. on a visa status other than H-1B, such as a student on an F-1 visa.
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  • Foreign nationals already in the U.S. on H-1B status can get even quicker processing if they are changing jobs to a different U.S. employer. Under the Portable H-1B provisions, they can start work for a new employer once their petition is filed with the INS (previously, they could not change jobs until the new employer’s H-1B visa petition had been approved). This means that the foreign national can legally work for the new company in a few days, as opposed to the three or four months it used to take under the old laws.
  • Foreign nationals can now get EAD work authorization cards much quicker under a new rule allowing concurrent filings of the immigrant visa petition and the application for permanent residence status. This means that a person is eligible to change jobs by using the EAD work authorization card, particularly if his green card case has been pending for more than six months. In this regard, foreign nationals are now more employment mobile and less tied to a particular as company, as was the case in the past.
  • Spouses and children of foreign nationals can now get permission to work in the U.S. much faster under the same concurrent filing option. This creates a large pool of talented people who previously were unable to work in the U.S. in non-professional job categories, such as secretarial or administrative positions.
  • Backlogs and quotas that once delayed both H-1B and green card processing have disappeared under the increased allotments provided by the AC21 legislation. In past years, H-1B visas would be “unavailable” for up to five months in a year. They are now available year round.
  • There previously was a “hard cap” of six years on a person’s stay in the U.S. on an H-1B visa. A foreign national now has the ability to extend his H-1B visa stay in the U.S. beyond six years if he has a green card case pending for more than one year.
  • Foreign national employees of a U.S. company’s subsidiary abroad can now, under certain circumstances, transfer to work for the American company in half the time. This change speeds up the process by six months. It also makes it easier for American multinational companies to source workers with critical skills from their subsidiaries or affiliate companies abroad.
  • New immigration automation software has been developed and is currently being used to dramatically speed up the time that it takes to prepare and file a visa application with the INS. Previously, it would typically take two to three weeks to prepare and file an H-1B visa petition with the INS. With the new available software the same application can be filed in as little as two to three days.
  • The INS has launched an online case-tracking website that allows the recruiter, as well as the hiring manager and candidate, to track visa processing real-time over the Internet. This allows the recruiter to know immediately when a case is approved and allows for better coordination of immigration and relocation activities.

There is also a prevalent misconception that a company must prove that they cannot find a qualified U.S. worker for the position before they can sponsor a foreign national for an H-1B visa. There is no such legal requirement. The company must, however, demonstrate that they are paying the prevailing wage for the position in the location where the job is offered. They must also prove that the position is at a professional level, and that the foreign national has the requisite professional qualifications. These are the three primary requirements for obtaining an H-1b visa for a foreign national. Some companies of course make internal policy decisions that they will not hire a foreign national for a position unless they cannot find an equally qualified American. That is a matter of discretion at a company and not a legal requirement. If a company, however, later sponsors a foreign national for a green card (which is separate and distinct from work visas such as the H-1B), then they will at that time need to demonstrate that they have attempted to recruit American workers for the job. A labor certification, which is a prerequisite to the green card approval, will only be issued by the Department of Labor if the company has demonstrated that it has undertaken specified recruitment efforts and was not able to find a willing and qualified U.S. worker to fill the position. With the downturn in the economy and the relatively large supply of available experienced US workers, it is a more difficult and lengthy process for a company to obtain a green card for a foreign national worker. But since the H-1B visa is available for up to six years or more, a company can still hire a foreign national now and defer any sponsorship of a green card until the economy improves. Foreign nationals are accordingly now viable candidates for a broad range of positions, even if there is a short hiring window. It is up to the individual company or recruiter to decide whether they wish to utilize this option.

Ronald R. Rose (ronrose@roserix.com) is a corporate immigration attorney with over 20 years of experience in processing work visas and green cards. Mr. Rose is a partner in the law firm of Rose Rix & Bennett LLP in Half Moon Bay, California. Updates on developments in immigration laws impacting corporate recruitment of foreign nationals can be found on the firm's website, located at www.roserix.com.

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