Every year, American universities graduate thousands of bright, eager, and hard working foreign students. These students usually graduate with Masters Degrees or Ph D’s in the Sciences or Management. Upon graduation, some students choose to return to their homeland. Others however, desire to remain in the United States and seek employment in this country. American industry and management can benefit greatly from taking a close, hard look at what these graduates have to offer. At a time when large sections of the American economy are taking a beating from foreign competitors, these job seekers provide the potential for America to turn the tables and regain market share, not only in the domestic but also in the international market.
The United States Immigration and Naturalization Service (INS) and the U.S. Department of Labor (DOL) are the two agencies that are directly responsible for implementing the laws and procedures for hiring and retaining noncitizen job applicants. There are essentially two steps in the employment process that all noncitizen applicants must go through in order to reside permanently in the United States.
The first step is a petition to the INS for the grant of a “Work Visa” usually falling into the H-1 A, H-1 B, or H-2 designation. The Work Visa is valid up to a period of three years, with additional extensions possible. The Work Visa will authorize an employer to hire an alien for a specific period.
While the Work Visa is necessary for the alien to commence work in the United States, it is by no means a permanent grant of the ability to work. The Work Visa, as stated above, expires within a certain length of time. Accordingly, if the alien wishes to continue to live and work in the United States, that alien must prove his or her worth to a U.S. employer, who can then file a petition with the DOL for “Alien Labor Certification.”
An application for “Alien Labor Certification” is the second step of the process. The Department of Labor, through complex procedural evaluation determines whether the employment of the alien worker will displace any U.S. citizen or resident who may seek similar employment. Therefore, all other things being equal, if a U.S. citizen engineer and an alien engineer apply for the same job, the DOL is likely to reject the certification application filed by the employer on the grounds that hiring the alien would deprive the American citizen of the job. However, many aliens are granted labor certification due to the fact that they have advanced technical skills and sometimes experience, which job-seeking U.S. citizens may not possess. This infusion of highly skilled labor into the work force acts as a shot in the arm to the U.S. economy.
In addition to the Work Visa and the Labor Certification routes to acquiring the ability to work and to reside permanently in the U.S.A., there are other avenues for aliens to visit, work and invest in this country. For example, multi-national U.S. corporations can bring employees from overseas branches into the U.S.A. to work under the intra-company or “L-1” Visa. Investors from overseas with substantial amounts of capital to invest, may also acquire permanent residency in the U.S.A. through their investments in the U.S. economy. There are various avenues to acquiring the services of an alien, depending on the circumstances of each case.
Employment-related immigration law is a dynamic area, and, as with other good things in life, has its own fair share of hurdles to cross in order to achieve the employer’s goals, namely hiring the alien worker. INS and DOL procedures are complex and difficult to follow, and it is recommended that employers retain legal counsel to represent them.
Highly skilled alien workers are a key factor in revitalizing the U.S. economy, as many employers will already attest. The U.S. government has provided ways and means for employers to avail of themselves of this educational gold mine and, at the same time, safeguard U.S. jobs. It is up to the employer to avail of these opportunities in a very competitive world.