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Hiring Foreign Workers in a Post-9-11 World

June 27, 2002
Related Topics: Immigration, Featured Article

The news reports about America’s heightened security efforts post-September 11 raise a question for many HR professionals: Will increases in security also increase the difficulties of hiring employees born outside the United States? Michael Patrick, an attorney at the nation’s largest immigration law firm, Fragomen, Del Rey, Bernsen & Loewy, P.C. in New York City says that hiring foreign nationals isn’t as difficult as HR professionals may think. Here’s what you need to know.

What’s the overall outlook for hiring foreign workers in this security-focused climate?
The U.S. is the world’s greatest receiver of human beings in every way. America has worked hard to help hire foreign nationals: We’re a country of immigrants. But we have a skittishness that comes over us periodically regarding immigration, [particularly when] the economy declines and the labor market experiences higher levels of unemployment. The downturn of the economy coupled with September 11 has brought on a wave of skittishness. But it doesn’t mean you can’t bring people in.

Have the rules concerning hiring employees born outside the United States changed much in recent months?
In many ways, the rules are the same as they were pre-September 11—with the exception of two categories that really have nothing to do with being employed: students and visitors. The rules are changing for them in a big way. But the rules about hiring haven’t changed for the most part. Employers who want to hire foreign nationals today can definitely do so. There are certainly hurdles for them to jump over, but it’s doable.

What are the obstacles?
If the person you’re hiring is from a country that the government says we need to be concerned about, such as Iraq or Libya, there are likely to be greater delays. Will you still get the person here? Yes, you probably will. What if that person in their background had some involvement—say back in college—with an organization the government has deemed anti-American? Is it possible that person’s application will be denied? Possibly. It may be more difficult today to hire someone from Libya and get them through the clearances than it was pre-September 11. If you want to hire someone from France or Brazil, it shouldn’t be any harder now.

What do employers need to know as they plan their hiring in the coming months?
A company employing non-U.S. citizens would be naïve to do so without giving consideration to the idea that future terror incidents could impact the freedom of employers and the foreign people they hire. Future legislative activity is a concern. But if I have a foreign national who’d be great for a job, and I’m looking at the marketplace, and I’m looking at a résumé and a candidate that’s awesome? Hire them. Take the steps to get the work authorization, and if it works out well get a green card for that person.

If you are hiring people from other countries, what should you be sure to ask?
The question is, does the person and the job qualify for an H-1B visa, the typical category under which you bring a foreign worker here. The H-1B is for professional workers. It’s not meant for manual labor. It’s not meant for categories that don’t require a college education. The laws say you can’t bring a foreign worker here to drive a taxi cab. That’s job protectionism. The law says we protect the manual labor jobs. So an H-1B category is for people who have a college education in a specific field.

    So if you want to hire Mike from England as a paralegal in your law firm, you first need to ask: Does the job require a professional degree? You can’t say, “I want Mike to be a paralegal and also a receptionist—he’ll answer the phone and stamp documents. That’s the kind of paralegal he’s going to be and we’ll pay him $17,000 a year.” If that’s the job you need to fill, you’re not going to qualify for an H-1B. It’s not professional. But if you say: “We’re hiring Mike because we need a paralegal who has a degree in economics to help on this particular case”—now you’re talking professional job. So that the first question: What’s the true nature of the job you’re trying to fill?

What’s the second question?
What are the credentials of the foreign national? If the credentials don’t match the job, we’ve got a problem. The employer can’t say: “It doesn’t matter, we know the guy can do it.” That’s not going to cut the mustard for the INS. You need to show them a college degree in a specific field or in one or two related fields. You’re not going to say: I just want someone who’s been to college, because it gives them an added maturity. That doesn’t qualify for an H-1B. If you say: I need someone with a college degree in economics to analyze these financial issues, that starts to make sense.

What’s the third issue a company needs to consider?
It’s looking at the company—what does it do, what kind of business does it have, how many employees, how much money does it make, is it publicly or privately held? Those are the three things we look for when a company calls us.

What are the other requirements an employer must meet?
You have to pay fair wages; you can’t pay a foreign national a tenth of what the U.S. marketplace would normally offer for that job—even if that’s 10 times more than they’d be making in their own country. Congress says, “You bring someone in here on an H-1B, you pay them the prevailing wage.” Before they give H-1B approval, they require the employer to submit to the Labor Department a document that says: “I intend to put someone in this job, at this location, at this salary, and I swear this salary is the highest among the prevailing wages for the community.”

Are there other categories besides H-1B under which a foreign national can be brought to the United States?
If you’re a true multinational company with offices outside the United States, you have a greater opportunity to bring in foreign workers. You can transfer them: We call them intra-company transferees. These people are brought under an L-1 visa. They transfer as managers or executives or as people with “specialized knowledge” of the company or its products. The advantage of the L-1 visa is you can move people more quickly than under the H-1B category, and you don’t have all these wage restrictions. Those are the top two categories of [foreign workers] employed in the United States.

What about hiring recent graduates?
There’s a way for recent graduates of college or grad school to work for an employer for up to one year without getting any of these governmental visas. They get “practical training permission” that allows them to work. If they have practical training authorized, the employer doesn’t have to do anything. You can put them to work that day. So ironically, somebody with 15 years of experience and a Ph.D. may have to wait while her papers are processed, but the person who got his Ph.D. last Tuesday can start working tomorrow morning. Normally, what the employer does during that year is get the paperwork ready to sponsor them for an H-1B visa.

What should HR consider once these employees are hired?
Be aware of the security issues now when foreign nationals travel. If you’re hiring someone on L-1 visa or H-1B visa status, when they enter into the country, they’re going to have to go to the consulate first, with their approval notice, and normally get a visa stamp on their passport. There’s going to be additional security checks. Perhaps if they’re male applicants between the ages of 16 and 45, they’re going to have to fill out an extra form that wasn’t required pre-September 11. If you’re going to hire a foreign national who isn’t present in the United States, there are going to be delays. Can you hire someone who can start next week? That’s a problem. Can you hire someone who can start in a month or two? That happens all the time.

Workforce, July 2002, pp. 78-79 -- Subscribe Now!

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