If your business is considering bringing a foreign professional worker to the United States, advance planning and continual monitoring is crucial. Today’s government policies are increasingly restrictive, and business owners need to understand both the laws themselves and how different agencies will interpret them.
The H-1B visa allows U.S. companies to hire skilled foreign workers for specialized occupations. Applications must be filed no sooner than April 1 for authorization to begin working October 1, the beginning of the fiscal year. After a sometimes lengthy review period, U.S. Citizenship and Immigration Services (USCIS) will select up to 85,000 petitions for workers with Bachelor’s and Master’s degrees for processing. For the most recent fiscal year, nearly 200,000 petitions were filed, so the acceptance rate was just 42 percent.
These H-1B workers face an extensive questioning and review process from several agencies before and after being approved to work in the U.S. Receiving approval by USCIS to come to the U.S. with an H-1B visa is by no means the end of the process. If the worker applies for an H-1B visa outside the U.S., he or she must complete a visa application, present him/herself for interview at a consular office, and obtain an H-1B visa before returning to the U.S. Immigration attorneys must anticipate the different agencies’ potential questions at every stage in the process. Applicants must be prepared to answer questions during the interview with U.S. consular officers, as well as those posed by Customs and Border Protection (CBP) officers at ports of entry.
That may not be a major hurdle for workers with strong communication skills, but may be challenging for those who are not prepared for these types of questions or are not as comfortable with explaining their skills and responsibilities.
Even after a foreign worker has settled into the U.S. job, the government scrutiny may continue. Businesses need to continually maintain documentation throughout the time the worker is under the company’s employment. An employer will need to maintain up-to-date records on the individual’s duties, as well as the wages paid to an H-1B employee.
A company’s staff must also know how to handle a visit from a USCIS representative, an on-site inspection. The person who signed the petition on behalf of the company, and the worker him/herself, will be interviewed by the inspector and asked to provide documentation regarding the position occupied by the H-1B worker.
Skilled foreign workers contribute to the vitality of South Florida’s business community. To capitalize on that talent pool, U.S. employers should consult with an experienced immigration attorney for advice in addressing both the legal requirements and how the government is interpreting and applying the law.
Gina M. Polo is a shareholder with Buchanan Ingersoll & Rooney PC in Miami, focusing her practice on immigration matters.