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Hiring Foreign Nationals? - Be Prepared

ABC's of immigration law

The Connecticut Tech Tribune

September 17, 2001

Authors: Brenda A. Eckert

Although the economy has slowed, tech sector companies continue to look abroad for foreign nationals with the job skills to fill technical or business-related positions. Therefore, it's important for these companies to know enough about immigration law to go about the process properly.

Foreign nationals can obtain U.S. work authorization by obtaining either an immigration visa ("green card") or a nonimmigrant visa.

The immigration visa status is obtained through either employment-based or family-based sponsorship. A foreign national with a green card may work in the U.S. for any employer for an indefinite period and can change employers without obtaining INS permission.

In contrast, a nonimmigrant visa permits a foreign national to work in the U.S. For a limited period of time for a specific employer. Nonimmigrant visas generally are obtained based on sponsorship from a specific U.S. employer for a particular job offer. The foreign national cannot change employers in the U.S. or have a substantial change in the nature of his or her work assignment without filing the appropriate form with the INS and obtaining approval.

Any company with a business need to employ a foreign national in the U.S. should plan ahead. It usually takes several years for a foreign national to obtain a green card. The first step in the process is to obtain an Application for Alien Employment Certification from the U.S. Department of Labor. These applications first must be filed with the Connecticut Department of Labor, and will then forward to U.S. Department of Labor in Boston, MA. for final approval.

There must first be a timely internal and external recruitment for the offered position. Employers can shorten this process by conducting the recruitment on their own, utilizing the Reduction in Recruitment ("RIR") process rather than waiting for the Connecticut Department of Labor to supervise the recruitment for the position. The Connecticut Department of Labor is currently processing Labor Condition Applications filed in April 2001 under RIR. By contrast, they are also currently processing Labor Conditions Applications filed in December 1998 that require agency-supervised recruitment. Therefore, this first step in the process of obtaining a green card for most foreign nationals is taking anywhere from several months to more than two years.

Once the employer has obtained an approved Application for Alien Employment Certification, it must then file with the INS for an employment-based preference for a green card.

This step determines the foreign national's preference or "place in line" for available immigrant visa numbers. The INS Eastern Service Center currently takes five to eight months to process an employment-based preference petition for a foreign national.

When a visa becomes available number, the foreign national may proceed with processing for a green card at a U.S. Department of State consular post abroad. If done at a U.S. Consulate, the foreign national will face a shorter waiting period, usually less than a year, to obtain the card.

A prospective employee who is already legally in the U.S. may apply for an adjustment of status with the INS, instead of using consular processing to obtain a green card. This approach generally takes longer than a year. The INS Eastern Service Center in St. Albans, Vermont, currently is reporting that it takes 365 to 540 days for the processing of such applications.

If the employer needs the employee quickly, it's preferable to first obtain a non-immigrant visa, putting off a green card. However, even this involves delays; the INS Eastern Service Center reports that it currently takes from 30 to 90 days to process such petitions.

Currently, it takes 90 days or longer for certain nonimmigrant visas, such as the H-1B visa for foreign nationals employed in specialty occupations in the U.S. It also usually takes a few weeks to prepare the nonimmigrant visa petition and gather the requisite supporting documents.

Consequently, a company must plan on a minimum delay of four months before it will be able to employ the foreign national, unless it utilizes premium processing service (which became available on July 31, 2001 for H-1B visas) or H-1B portability provisions to shorten the waiting period for obtaining U.S. work authorization for foreign nationals.

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