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From time to time it becomes necessary for American
employers to hire workers from other countries in order
to fulfill a special need. Foreign workers can be
brought to the United States to fill a temporary need or
a permanent long-term need, or both. Foreign employees
coming to fill temporary needs enter the United States
on temporary visas and are considered non-immigrants.
This is because their temporary visa does not give them
the right to stay in the United States permanently and
they are not immigrants. Employees coming to fill
permanent, long term, future needs come to the United
States on immigrant visas and are granted permanent
residency status. Permanent residency status allows them
to remain in the United States.
It is important for employers to understand that the
terms used by immigration are immigration terms. Whether
or not an employee or prospective employee is
"extraordinary," or "outstanding"
whereas another is considered merely an "alien with
and advanced degree" is not based on a subjective
definition in common every day usage, but rather based
on specific criteria defined by the INS. Those criteria
are defined throughout this web site and in the federal
regulations.
It is important for employers to understand that
under immigration law, some employees may qualify to
self-petition. Although an offer of employment is not
required in these cases, it is helpful. The assistance
of employers in providing an explanation and letter of
support, as well as confirmation of current and
prospective future employment is helpful. The INS
recognizes that all companies are subject to market
conditions and that offers of employment may be
withdrawn at any time due to market factors.
Planning
an immigration strategy
If the employee is not self-petitioning, the
employer must generally become more involved in the
labor certification and/or immigrant visa process. This
is because in some situations the employer is the
petitioner, whereas the employee is the beneficiary of
an immigrant visa petition. When petitioning, it is
important for employers to present not only the day to
day tasks performed by the employee, but the big picture
so the INS understands the scope of the companies
operations and the role of the foreign national in that
process.
Thus, under ideal circumstances, the employer should
plan not only for the short term non-immigrant visa
process, but prospectively, for the possibility that an
individual employee's services may be needed on a
permanent or long term basis in the event that a
qualified U.S. worker cannot be identified, where the
employer needs an individual with special skills and
credentials, or where the services of the employee are
in the national interest. An employer can do this by
taking the time to carefully define all the specific job
duties related to a given position, as well as the
credentials and experience required to complete each of
those duties. Unofficial duties, which have become part
of the job over time including liaison work, supervising
other employees including other professionals, as well
as the placement of the position within the
organizational chart should be identified.
Similarly, even employers who do not currently have
an immediate need for a foreign national employee,
particularly those in the sciences and technology
fields, are advised to maintain information such as
salary surveys, and records of actual wages paid, and
methods for determining how those wages are set. This
information may be needed at a future date and time in
the event that the services of a foreign national are
needed. Such information may be of use to an employer
for a number of reasons.
For example, maintaining current job descriptions and
position requirements helps to insure that prospective
employees clearly understand what is expected of them,
helps to insure a good job fit, and eliminates
misunderstandings. Maintaining current information about
prevailing wages from published surveys and other custom
surveys commissioned by the employer, enables the
employer to have an accurate assessment about the
appropriate wage which must be offered to recruit
qualified employees. This helps to insure that employers
do not "lose" good candidates to competitors.
Prevailing wage data also is valuable in collective
bargaining situations.
Maintaining records of actual wages paid and the
methods used for determining these wages helps insure
consistency and fairness across an organization, as well
as within given departments. These types of sound
employment practices advocated through DOL and INS
requirements help employers, even those not currently
planning to hire a foreign national avoid charges of
discriminatory practices where certain groups of
American workers believe they are not treated
consistently, equitably, or fairly compared to other
groups of American workers on irrelevant criteria such
as race or gender. Maintaining this type of information
helps employers identify potential problems, correct
system errors, and keep good employees by rewarding
employees based on objective criteria.
Although the process of obtaining a visa for a
foreign national employee may appear complicated and
difficult, attorneys specializing in immigration law,
like Thomas Bassett and Associates can walk you through
the process step by step, making it easy and painless.
Thomas Bassett and Associates will also help your
employee achieve the needed immigration objective to
perform the needed services, and will also help insure
that you as an employer comply with all requirements
reducing potential and unnecessary liabilities. For
example, in the H-1B process, there are certain posting
requirements. Thomas Bassett and Associates will give
you and staff easy to understand instructions at each
step of the process when special action is needed by
your company or organization.
Special
issues
Employers should be aware that experience gained by
a foreign national in your employ may not generally be
used to later satisfy the minimum experience requirement
in a labor certification or immigrant visa petition.
Similarly, employers should be aware that a job title
for the purpose of filing a petition is the generic job
title under U.S. Department of Labor definitions for
position titles, rather than the actual title used by a
company. Thus, for example, a researcher working at a
University accorded a title of "Technician" by
the University, may be classified as a "Research
Scientist" under the Occupational Title related to
the job description by the Department of Labor. It is
the DOL title that is often of most interest to the INS.
Employers should be sure to inquire from prospective
employees (only after an offer has been made and
accepted) about dependents who may also need a visa to
enter the U.S. either with, or after the entry of the
principal alien. This information should be promptly
shared with the attorney preparing the visa petition.
Credibility
Thomas Bassett and Associates has the highest
values. This means that we are proud of our integrity
and work hard to maintain it. This also means that we
make the same effort to protect the integrity and
credibility of the employers we represent. Some
attorneys push the envelope; attempting to see what they
can pull over the INS or DOL. Thomas Bassett and
Associates upholds the highest standards. We believe in
the long run this approach serves our firm, and those of
the employers we represent well. This is because it
means that we have the respect of the staff of the
federal agencies with whom we interact. It also means
that in certain critical situations, our word is trusted
and we are able to get special consideration and
assistance from those agencies in emergency situations.
It also means that applications we submit are not
regarded negatively, as potentially fraudulent filings,
by adjudicating officials because our sterling
reputation is behind our work.
In this section see
also:
I-9
Eligibility Requirements
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