Robert Karr

Monday, 24 January 2005 08:49

Know your hiring options

Each year, U.S. colleges and universities graduate thousands of foreign nationals who become temporarily available to U.S. companies for employment.

Many of these new graduates offer talent needed by your business. Invariably, your company will attract their attention and your understanding of the visa options will enhance your ability to take advantage of these opportunities.

The primary visa option for hiring these graduates is the H-1B nonimmigrant visa. H-1B visas are issued to college-educated professional workers for specialty skilled jobs. They require a corporate sponsor and the payment of a prevailing wage established by the government, and they are renewable for a maximum of six years.

Until the 2004 federal fiscal year (Oct. 1, 2003 to Sept. 30, 2004), 195,000 H-1B visas were available annually to employ eligible foreign nationals. This temporary increase was granted in response to the perception that there were more jobs available in the U.S. technology industry than there were available U.S. citizens.

It is generally understood that the return to the current limitation of 65,000 H-1B visas is in response to the downturn in the U.S. economy, and the desire to protect jobs for U.S. citizens.

In FY2004 and FY2005, the new limitation was quickly reached. As a result, no more H-1B visas will be issued until April, when the application process for FY2006 is scheduled to begin.

In other words, if an H-1B visa is approved this spring, the foreign national will be unable to begin work until Oct. 1, 2005, unless he or she holds another visa status that permits employment, such as an F-1 student visa that permits a one-year practical training period following graduation.

There is some relief available to companies that require the talent of a foreign national prior to October. In December 2004, President Bush signed the Omnibus Appropriations Act for FY 2005, which contains an exemption for foreign nationals who have earned master's degrees or a higher degree from a U.S. college or university. the exemption permits the approval of up to 20,000 H-1B visas for foreign nationals meeting this criterion. Petitions under this exemption cannot be filed until March 8, 2005, the effective date of the exemption.

The basic H-1B eligibility requirements

The key issues in determining eligibility for H-1B classification are (1) whether the position is a specialty occupation, and (2) whether the foreign national meets the requirements of the specialty occupation.

A position is a specialty occupation if one or more of the following criteria is satisfied -- a bachelor's degree or its equivalent is normally the minimum entry requirement for the position; the degree requirement is common to the industry or the position is so complex or unique that it can be performed only by an individual with a degree; the employer normally requires a degree or its equivalent for the position; or the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's degree or higher.

The foreign national meets the requirements of the specialty occupation if he or she has a degree from a university or its equivalent in a specialty field. Generally, the focused curriculum of the degree should supply the knowledge and skill necessary to perform the duties of that specialty field.

Accounting, marketing, finance, engineering and computer science are examples of specialty fields. Typically, jobs that are staffed with personnel having degrees in liberal arts fields are not considered specialty fields and are H-1B denied.

Additional requirements, such as the prevailing wage required to be paid to the foreign national, must be evaluated in the context of your industry and business.

Other visa options for professional and skilled workers

* H-2B visas. Issued to skilled and nonskilled workers hired for temporary or seasonal work, excluding agriculture. Limited to 66,000 visas a year.

* TN visas. Issued to professional workers who are citizens of Canada or Mexico and work for U.S. employers. The visas were created under the North American Free Trade Agreement, which was signed by Canada, Mexico and the United States. No visa limit.

* L-1 visas. Issued to workers employed by foreign companies with operations in the United States. The visas allow employers to transfer managers and specialized-knowledge workers, such as engineers, from locations outside the United States to jobs in the United States. No visa limit.

* E visas. Issued to traders and investors from treaty nations. The visas allow employers to transfer managers and specialized-knowledge workers, such as engineers, from locations outside the United States to jobs in the United States. No visa limit.

Robert Karr is an associate in the Chicago office of Barnes & Thornburg LLP. He concentrates his practice in the areas of corporate and immigration law, with emphasis on service to Pacific Rim clients and operations. Reach him at (312) 214-8810 or robert.karr@btlaw.com.