Immigration Law Changes Add Pressure to Employers

Entrepreneur’s Notebook by Paul Medved

The federal government’s effort to tighten up the Immigration and Naturalization Service promises to make it more difficult than it already is for employers to hire foreign workers.

Even so, those employers who understand and follow the increasingly complex rules of the INS will continue to be able to hire workers with expertise not readily available in the U.S. This is good news for small and mid-sized companies in Southern California, among them many firms involved in creating, packaging and marketing entertainment products.

The reorganization will also affect employers who recruit workers among foreign students graduating from Southern California’s colleges and universities with fresh engineering and technology talent.

Little leeway

Announced earlier this summer, the reorganization gives the INS a broad mandate to bolster its efforts to keep terrorists out of the U.S. As a consequence, employers can expect the INS to give them little if any leeway when enforcing immigration law and procedure.

The practical result is that employers who don’t do things exactly right stand little chance in any effort to hire foreign workers. Those who intentionally violate the law, on the other hand, stand a good chance of finding themselves in serious legal difficulty.

On the positive side, the U.S. Department of Labor is now considering rules to speed up its procedures for employers seeking green cards for workers with certain skills. If these rules take effect, they could shorten the time it takes to obtain green cards to 21 days far less than the one to two years it sometimes took in recent years.

In the past, many Southern California employers tried to go it alone when hiring foreign-born workers, and the INS often exercised discretion when enforcing the rules regarding deadlines for extending visas, for example. In addition, many employers hired foreigners already in the U.S. on student or visitor visas in the expectation that the workers could gain legal status once hired, sometimes merely by stepping across the border into Mexico or Canada to obtain a new visa.

This will probably be impossible in the future. American consular officials in Mexico and Canada now refuse to issue such visas as a rule, forcing foreigners to return to their native countries to initiate the paperwork from there. To make things more complicated, the INS intends to crack down especially hard on foreigners seeking to enter the U.S. from countries known to harbor terrorists, including many countries in the Middle East.

Visa delays

The new rules permit the INS to photograph and fingerprint such individuals and subject them to background checks, including checks by the Central Intelligence Agency. The INS can also require foreigners to register with the government and detail their movements in the U.S.

From the standpoint of U.S. employers, at best this new caution can lengthen the time it takes to get visas permitting foreign-born workers to take jobs here. At worst the new rules can make it impossible for foreign-born workers to get into the U.S. at all, hampering the employer who needs their special skills.

What’s the solution? Employers must understand the basics of immigration law, starting with the different kinds of visas obtainable by foreign workers. They must also follow a strategy designed to overcome the specific immigration problems likely to confront the workers they want to hire.

Visas for foreign-born workers come in three general categories:

– The “specialty-occupation” H-1B visa for individuals with degrees from foreign universities for example, engineers, scientists, certain computer specialists and lawyers and accountants. The H-1B visa allows such individuals to work in the U.S. for up to three years, with another three-year stay possible under an extension. A similar visa, known as the TN visa, applies to Mexican and Canadian nationals.

– The O-1 visa for individuals with “extraordinary abilities” actors, directors, singers, dancers and even makeup and hair stylists with unique skills needed for specific projects. The O-1 visa allows such workers to remain in the U.S. for the duration of the project, not to exceed three years.

– The L visa for workers involved in intra-company transfers for example, individuals employed by an overseas unit of a U.S. company and transferred here to undertake specific projects or tasks. The L-1A visa covers executives and managers; the L-1B visa covers workers farther down the corporate ladder.

For any employer seeking workers under such visas, the key lies in the details of these categories. To give yourself the best chance, make sure the worker you want qualifies under one or another of these categories.

You should also repair any paperwork deficiencies you uncover before you begin dealing with the INS.

Should the new rules force the worker to return to his or her country of origin, make sure you check and re-check every item of paperwork and documentation before the worker leaves, to avoid long-distance trouble.

Above all, be careful. The details of immigration law and procedure contain many a trap for the unwary, and if you fall into one or another of them, the best you can hope for is to spend more time than you want getting things straightened out. You can still hire foreign-born workers to keep your company competitive, but given the government’s heightened wariness of foreign visitors, you must play by the rules.

Paul Medved is a Los Angeles attorney who practices immigration law. He may be reached at

[email protected]

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