DHS Pilot Program Streamlines Hiring of Foreign Talent

Known Employer to last up to one year

Roy Maurer By Roy Maurer March 10, 2016

Employers that regularly hire foreign workers are one step closer to a quicker hiring process, similar to the popular TSA Pre-Check expedited security screenings for frequent flyers used at the nation’s airports.

The U.S. Department of Homeland Security (DHS) announced March 4 that it’s moving forward with testing a program to preapprove employers that frequently hire foreign workers, saving time and paperwork for both the employers and the government.

Dubbed “Known Employer,” the program draws on ideas long advocated by the Society for Human Resource Management and its affiliate, the Council for Global Immigration (CFGI).

CFGI Executive Director Lynn Shotwell first testified before the House Judiciary Committee on the subject in May 1999. “It had a different name then, but the concept is still the same 17 years later,” she said. “Essentially, when an employer files a petition, there’s certain information it files over and over again. And it would save resources for both the employer and the government if some of that basic information was preapproved upfront.”

U.S. Citizenship and Immigration Services (USCIS), which will administer the program, explained that by modifying the process used to review an employer’s eligibility to sponsor workers under certain employment-based classifications, the program is expected to reduce paperwork, costs and delays and to promote consistency in the adjudication of petitions and applications.

This is a welcome development for corporate immigration and mobility professionals like Denise Rahmani, director of U.S. immigration for software firm Oracle. “This represents a more practical and streamlined approach for submitting employer support documentation with certain petitions,” she said. “Employers and employees will benefit from the efficiencies of the program, including cost and time savings.”

Rahmani said she hopes a formal program for widespread use among employers will be implemented as a result of the pilot.

Red-Tape Reduction

Currently, employers must provide the same information about their corporate structure and financial health every time they apply to secure a visa for a foreign worker.

As Shotwell explained, there are basically three parts to any immigration application:

  • Is the employer a legitimate employer qualified to sponsor people for visas? Is it incorporated in the U.S.? Can it pay the prevailing wage? “This will be the piece of the puzzle adjudicated upfront,” she said.
  • Is the type of job qualified for the type of visa the employer is applying for? Although apparently not being tested in this pilot, preapproving this aspect of the immigration petition would also be a great help to employers, according to practitioners. “It has the potential to lead to more-consistent adjudications for whether a position is a ‘specialty occupation’ and H-1B caliber or whether a position in an L-1 filing does in fact involve specialized knowledge,” said Andrew Wilson, an immigration attorney and partner at Serotte Reich Wilson, based in Buffalo, N.Y. “In particular, whether a position involves specialized knowledge or whether it is managerial or executive in nature are huge sources of contention right now for L-1 filings.”
  • Is the worker eligible for the visa? “That’s the piece we need USCIS to look at every single time to see if they qualify for a visa and if they are eligible to come into the U.S.,” Shotwell said.

Over time, she added, the employer community would like to get to a place where the first and second pieces are preapproved.

Under the Known Employer pilot, up to nine preselected employers will electronically submit documents relating to the company’s corporate structure, operations and financial health just once, to be stored by the agency.

Participating employers will also be asked to complete and upload Form I-950, Application for Predetermination under Known Employer Program.

USCIS officers will review and predetermine whether a prospective employer has met certain requirements relating to the visa classifications, and if the agency approves the employer’s predetermination request, the employer may then file petitions or applications for individual employees without needing to resubmit company information with each petition or application.

Employers will still have to explain why they need to hire the worker and provide details about the job for each petition, but they wouldn’t have to start over again each time.

The program reminded Wilson of the Blanket L-1 visa process that companies use to approve their corporate relationships for individual L-1 filings. “With the Blanket L-1 approval, companies no longer need to provide the mountain of materials on the company and requisite corporate relationships,” he said. “Not only is the filing streamlined, the officer adjudicating the Blanket L-1 filing has fewer issues to analyze on each individual case.”

Preapproving certain employer and job information would also cut down on inconsistent adjudications. “When a company addresses a Request for Evidence [RFE] for one filing, to date it does not mean that issue is resolved for future filings as well,” Wilson said. “The company may still receive RFEs and scrutiny on an issue that has already been addressed and resolved through prior filings.”

Eligible Visa Classifications

The pilot program will cover four temporary-worker visa classifications and two employer-based immigrant classifications. These include the:

  • H-1B specialty occupation.
  • L-1A intracompany transferee in a managerial or executive capacity.
  • L-1B intracompany transferee in a position involving specialized knowledge.
  • TN Canadian and Mexican citizens engaged in business activities at a professional level under the North American Free Trade Agreement.
  • E12 outstanding professor or researcher.
  • E13 multinational executive or manager.

Employers participating in the pilot program will not incur any additional fees, and the pilot is scheduled to last for one year. So far, five companies have been selected for the pilot: Citigroup Inc., Ernst & Young LLP, Kiewit Corp., Schaeffler Group USA Inc. and Siemens Corp. If the pilot is a success, the DHS plans to expand the program to all eligible employers.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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