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Companies that blinked at an inopportune moment during this past fiscal year probably missed their chance to file for employee H1-B visas. The Immigration and Naturalization Service (INS) had already received a sufficient number of H1-B petitions by Feb. 29 to reach its FY2000 H1-B cap of 115,000. The agency cut off further consideration for visas on March 21—only six months into the fiscal year.
Fiscal year 2001, which begins Oct. 1, 2000, doesn’t promise much relief because the 2001 cap for H1-B visas is only 107,500. For FY2002 and onward—barring action by Congress—H1-B caps will revert to their former level of 65,000.
Although caps in FY1998 and FY1999 weren’t reached so quickly, a hot economy and demand from the high-tech sector for information technology (IT) professionals will likely keep the pace for H1-B petitions brisk, notes Linda Dodd-Major, director of the INS office of business liaison in Washington, D.C.
"There’s also a gold rush effect," she says. "Businesses know the cap was met early the year before, so they hurry to get their petitions in."
In fact, Dodd-Major cautions, "There’s a possibility that FY2001’s cap will be reached before the fiscal year even starts."
That’s because, although the cap for FY2000 H1-B visas had a cutoff point in March, the INS kept the petitions filed before March 21, 2000—unless withdrawn by the employer—for consideration against the FY2001 cap. This means old petitions may already be ahead of new filings for FY2001. Furthermore, because employers were able to file for FY2001 visas as early as April, businesses that wait until the new fiscal year starts in October may already be out of time.
When H1-B Visas Aren’t Available
If you are one of those people who waited until the last minute to file and have a hot recruit in the wings, you may want to explore some other avenues.
Immigration attorney Richard Maney of the Tampa, Fla., firm of Maney and Associates P.A., suggests a couple of defensive measures. "For someone who’s already here, ask if perhaps the person can be a full-time student in the interim," says Maney. "The person can’t work but at least can be here legally."
Another alternative is to keep in contact with potential candidates. "You might say, ‘We can’t bring you here now, but if you’ll make a commitment, we’ll start the paperwork,’ and so on," says Maney. "This is a life-changing decision for the employee. It can be very beneficial for that person to have extra time to make arrangements. Show the person, though, that you have a definitive plan."
Sometimes HR just doesn’t want to deal with the frantic process of filing H1-B petitions. The procedure is complex enough, and, often, petitions are kicked back for corrections or additional information. With a little luck and perseverance, employers may find current H1-B visa holders who post for positions on the Internet or answer recruiting ads. But companies tempted to hire them should exercise care. "There is no grace period after an H1-B alien leaves employment," notes Dodd-Major. "Technically, on the next day, the visa isn’t valid."
She explains that the former employer has a responsibility to report the termination to the INS and withdraw the visa. "In effect, if an employee terminates and the INS receives the employer’s notification before another employer starts a new petition, any petition the second employer files is invalid," says Dodd-Major.
To get around this, a company trying to hire a currently employed H1-B visa holder should process a new petition and get approval while the alien is still employed with the first company.
"When the new petition is approved, the alien can leave company A to work for company B without the visa status being an issue," says Dodd-Major.
In Maney’s experience, however, "foreign nationals don’t ‘jump ship’ easily." He explains that changing employment "creates a disruption of their visa status and can often subject the employee to additional risks associated with the immigration process."
Employers that do successfully recruit existing H1-B visa holders typically emphasize their willingness to complete the visa process on an expedited basis, offer a superior management team, offer more rewarding work or offer substantially more money, says Maney.
Beyond H1-B Visas
So, you missed the H1-B cutoff, and you can’t find any current H1-B aliens. What do you do now? Actually, there are many options. Companies facing a shortage of workers can get locked into thinking that the H1-B visa for IT workers is their only option for international employees. However, Alan Gordon, a board-certified immigration specialist based in Charlotte, N.C., who limits his practice to immigration law, believes that HR should make it a rule to be creative.
"Certain candidates might qualify for something other than an H1-B visa," says Gordon. "Run them through the gamut of categories they might fit." Gordon points out that people who have won prizes in their field of endeavor, businesspeople who have been knighted, patent-holders and the like may qualify for employment under the O-1 visa.
Employers who cast about further will find that the North American Free Trade Agreement (NAFTA) allows TN visas for qualified citizens from Mexico or Canada to work within professional categories that range from hotel managers to dietitians to soil scientists. The disadvantage of TN visas is that they’re granted for only one year, but they can be extended annually without limit.
A particularly useful visa for companies with international offices is the L-1 intra-company transferee visa. "Executives and managers use L1-A visas. And L1-B visas are for workers with specialized knowledge, like a machinist who understands how your manufacturing works," says Maney. "If your company has a foreign affiliate, you can even look at bringing in whole teams."
Paul Schmidt, senior HR specialist at Cameron, a division of oil field tool manufacturer Cooper Cameron Corp. based in Houston, uses L-1 visas to bring in managers and employees with specialty knowledge from its international operations.
"A newly graduated engineer in Singapore may have book knowledge," says Schmidt, "but he needs to learn how to apply it. We may put design engineers in an offshore department or in valve design. They get hands-on experience, and when they go back home, they have a well-rounded idea of the various departments."
Another type of visa is the J-1, open to researchers, scholars, medical interns, teachers and trainees. David Wu, director of Tampa, Fla.-based Hospitality International Group’s immigration program, uses about 200 trainees a year under the J-1 program at the company’s various hospitality operations.
"This program works perfectly for our system," says Wu. "We can recruit a lot of manpower this way, and when we send them back to their own countries, we already have a location there where we can provide them with a job. It’s easy to put these trainees into our system, and we also create a lot of long-term employees."
Wu emphasizes that a company using this program must have a valid training program for which the trainee is qualified. "We use this training for management and for positions like specialty cooks. You can’t bring people in to train as dishwashers and bartenders."
Schmidt also has taken advantage of the J-1 program for about three years and runs trainees through the same program he uses for their U.S. counterparts. "We use the Association for International Practical Training (AIPT) as the sponsoring institution since it can be difficult for a company to become certified for this program," he says. "We also like it this way because AIPT is responsible for all the paperwork." AIPT is a nonprofit organization based in Columbia, Md., that serves as a sponsor for international trainees.
Of course, each of these visas has its own set of rules and restrictions, and HR should consult with immigration experts to see if any of its open positions would qualify. "While the immigration law is vast, and the basic answer to entering the country is ‘no,’ there is a long string of exceptions," says Maney.
Planning Is Key
Dodd-Major emphasizes that strategic HR planning is increasingly important.
"It used to be that companies could be more spontaneous about creating positions [for international employees], but nowadays, you need to know a year in advance what positions will be open," she says. "Expedites [for visas] will only be granted under extreme circumstances, and, if a review shows that advance planning would have prevented the need for an expedite, you can expect it to be turned down."
Maney believes that judicious planning will give you a powerful edge in terms of keeping important positions filled. For example, nationals with exceptional qualifications and abilities, or other skilled workers and professionals, may qualify for one of the E-series visas. Maney says these visas offer great opportunity but have the drawback of taking a year or two to process.
Ideally, HR should identify international candidates a year or two in advance and begin processing labor certifications. "This seems bizarre to U.S. employers, but not to foreign workers, who are used to longer commitments," says Maney, noting that it’s widely known over the world that it takes a long time to get a U.S. work visa. "Americans are the only ones who don’t believe it," he says.
According to Maney, planning so far in advance gives the employer a lot of control. "Maybe you’ve identified 50 positions and candidates and have received your labor certifications," Maney explains. "Even if someone backs out or isn’t available, you can ‘bank’ the certification, which is approved for the position. Now you have a very powerful recruiting tool to wave under someone’s nose."
The best strategy for ensuring the smoothest possible visa petition is for HR to gather and send complete information to the appropriate government agencies and build in time for corrections. "If you assume this process is simple or quick, you’re putting yourself in a trap," says attorney Lesley Amano, who practices immigration law with the office of Sheela Murthy in Owings Mills, Md. "Managing a visa program is not a spare-time job or afterthought for HR."
Amano advises HR personnel to provide all the information requested by their attorneys. "Sometimes HR assumes that certain information isn’t needed and decides not to send it," says Amano. "The better course is to ask why it’s needed if you have a question," rather than not send it at all.
Dodd-Major adds that HR should make sure the information is readily available to adjudicators. "Enclose a cover letter explaining what’s inside," she suggests. "Make a table of contents and tab the packet. You want to be able to say, ‘This point is made with this document under this tab.’"
Maney believes that immigration agencies want whatever HR does to be fair, to work and to fit the rules. "Educate recruiters on what the rules are," he urges. "Read the rules backward and know who to recruit. Write profiles of candidates who will slide through the system quickly and easily, and help recruiters recognize these candidates.
"Remember that this whole program is voluntary; no one has to use it," Maney adds. "Look at immigration law as a window of opportunity, rather than a ball and chain."
Editor’s Note: For information on the legal aspects of filing and maintaining visa applications, see the Legal Trends column in the August issue of HR Magazine.
Carla Joinson, a contributing editor to HR Magazine, is based in San Antonio. She specializes in writing about business and management issues.
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