RSM Resources

Just beneath the surface of a simmering American debate over immigration and border control is another hot topic for midsized businesses: how to legally bolster their workforces with non-native employees.

But staying on the right side of the law — regardless of whether the prospective employees are skilled professionals or unskilled laborers — can be a tricky proposition.

"When it comes to hiring professionals, the biggest misconception employers have is how long the visa process will take," says Christopher DiGiorgio, an immigration employment lawyer with Littler Mendelson in Atlanta. "Employers often make plans to bring someone on board in a week or two after extending an offer, only to find that it can take up to a month just to get a new visa approved."

For more than a decade, the U.S. computer industry has tapped non-native talent for hardware and software engineering jobs. As more industries — such as accounting, banking, construction engineering and even restaurant management — face domestic skills shortages, they are increasingly looking abroad to bridge the gap.

However, that approach has limitations. For starters, the U.S. government allows only 85,000 skilled, non-native professionals to enter the country each year on an H1-B visa — the most commonly used entry document for non-native professionals. That quota includes 65,000 people who hold the equivalent of a bachelor’s degree,and an additional 20,000 workers who hold at least a master’s degree from a U.S. college or university. These visas allow non-native professionals to work in the United States for three years, after which they may extend their stay for another three years.

Businesses should note several important points about the visa process, DiGiorgio says. First, the government issues H1-B visas to companies, not individuals. That means a company seeking to hire a non-native professional from another firm must petition the U.S. Citizenship and Immigration Services (USCIS) for a new H1-B document. Failure to do so can result in a fine of up to $2,000, largely because the government could show the employer had "constructive knowledge" the hire was not properly authorized.

Additionally, when a company seeks to hire someone with an H1-B visa, it needs to demonstrate only that the job requires specialized knowledge. The firm does not need to prove a lack of qualified candidates among U.S. citizens. However, if the employer opts to help the worker gain permanent residence after the initial visa term and extension expire, DiGiorgio says, the company must document that no local or regional U.S. citizen is willing or able to fill the job.

In many cases, employers can bypass the H1-B quota limits by targeting the specific type and location of talent they need. For example, companies with multinational operations can consider L1-A orL1-B visas, which allow businesses to transfer needed talent between affiliated locations. Another choice, the O-1 visa, can help when companies need foreign nationals of "extraordinary ability" in the sciences, the arts, education or business. To qualify for this visa, companies must supply substantial documentation on the individual’s stature and accomplishments in his or her field of expertise.

A more focused tool is the TN-NAFTA visa for Canadian and Mexican professionals. This visa, approved as part of the North American Free Trade Agreement, allows professionals from either nation to enter the United States to work at prearranged jobs in certain categories.

"Any engineering job would be allowed under a NAFTA visa," DiGiorgio says. "On the other hand, a university professor could come in on this type of document, but a grade-school teacher could not. And, a lot of basic business jobs, such as marketing and sales, would not be approved for this type of visa."

Because the visa process is complex,experts generally advise companies not to handle it alone — even within-house counsel. DiGiorgio notes that his law firm employs more than 500 lawyers, but only about 20 have specialized expertise in immigration and employment law.

"What we typically find when companies try this on their own is that applications are often returned, which causes delays that often result in missing the annual quota," he says. "When that happens, that can mean the individual they want to hire may not be able to come work for them that year."

On the unskilled labor front, the documentation process is less complex but often harder to validate. Typically, a company will have the applicant fill out an Employment Eligibility Verification Form, or Form I-9, and request documentation that establishes the worker’s identity and eligibility to work in the United States. Applicants who do not have proper identification at that time must prove they’ve applied for the documents. An applicant who accepts a job offer has 90 days to present the proper documents to complete the I-9 file.

However, current law does little to help employers determine document authenticity. The USCIS Web site notes that companies are not required to be "documentation experts" and that they would not incur penalties for accepting a document that "reasonably appeared to be genuine or to relate to the person presenting it."

Limited verification help is available from the Systematic Alien Verification for Entitlements program, a voluntary federal database that enables companies to obtain electronic verification of a job applicant’s immigration status directly from the U.S. Department of Homeland Security. While this online database is quick and relatively inexpensive, DiGiorgio says a complicated sign-up process and questionable reliability have kept many companies from using it.

Despite the attention to this issue,fines or penalties tend to be rare unless a business has along-standing series of hiring violations. And firms that hire a greater percentage of high-skill workers have lower risk of enforcement actions.

But that doesn’t mean companies can afford less vigilance. Because of the political heat on illegal immigration, experts say an increase in documentation reviews, on-site inspections or even undercover activity in a company are all possible.

"That’s why good record-keeping is really important," DiGiorgio says.