Business Immigration to the United States

by: Allen E. Kaye, Attorney-At-Law

A Basic Overview: Current U.S. immigration law allows people who have skills and talents needed in the United States

to be admitted to the United States to work on a temporary or permanent basis. This paper provides a basic overview of

the current employment-based immigration system.

Nonimmigrant (Temporary) Visas for Business

There are more than 20 different kinds of nonimmigrant visa names and types. Each is defined by Congress in statute to

meet a particular need of the U.S. economy. Some of these visas can be used for employment in the United States, under

tightly regulated conditions.

These foreign nationals are allowed to enter the United States for temporary, specifically defined periods of time and in

most cases must show intent to return to their home country at the end of their temporary stay.

Most foreign nationals undergo at least two screening processes in order to come to the United States. The State

Department Consular Officer decides whether the individual's purpose in coming matches one of the approved categories,

and whether the person meets all other eligibility criteria for admission (that is, they're not a criminal, have not previously

committed fraud, etc) before issuing a visa to allow the individual to come to the United States. Upon arrival, all

nonimmigrants are inspected by the INS to reconfirm their qualification for admission, and to determine the appropriate

nonimmigrant classification and authorize a specific length of stay. Some employer-sponsored nonimmigrants must have

INS approve a petition on their behalf, based on highly defined criteria, before even applying for their visa.

Some work-authorized categories are limited by annual levels (for example, H-1B professionals, and H-2B temporary or

seasonal workers).

Immigrant (Permanent Resident) Visas for Business

There are five basic types of business immigrant visas, ranked in order of priority of need by U.S. employers and the

economy, as determined by Congress. All categories are limited by annual levels and per-country levels.

These immigrants become permanent residents--obtain "green cards" -- and the indefinite right to live and work in the

United States, as long as they do not commit any offense that would render them deportable.

Business immigrants usually are sponsored by a U.S. employer based on a demonstrated need. Some business immigrants

may self-petition if they meet statutory criteria for "extraordinary ability" in their field, or if their entry would be in the

"national interest."

Protections for U.S. workers are built into the system. Most business immigrant cases require Department of Labor

certification that no U.S. workers are able, qualified or willing to take the position offered to the foreign national and that

admitting the immigrant won't negatively impact the wages and working conditions of similarly situated U.S. workers. The

only categories exempt from this requirement are those for individuals who are extraordinary or outstanding in their field or

whose presence is in the "national interest."

LABOR CERTIFICATION - Same Old Game, Same Old Players

Previous Connect! Articles have reported on the Department of Labor's (DOL) proposal in the FY 2000 budget to move

administration of the foreign labor certification programs from the Employment and Training Administration (ETA) to the

Employment Standards Administration (ESA). Thanks to the efforts of Senators Spencer Abraham (R-MI), Chair of the

Senate Immigration Subcommittee and Arlen Specter (R-PA), Chair of the Senate Labor, HHS Appropriations Committee

this effort was defeated this year. Many employers opposed this move, arguing that under ESA (which enforces employer

compliance) the program would be even more unmanageable than currently. While rejecting this transfer, both Committees

also recognized the need to reform the labor certification programs. (DOL has proposed an automated labor certification

process, known as PERM, to address ongoing concerns about growing backlogs, but has done little to date on this

proposal.) Both Committees directed the agency to take steps to shorten processing times and eliminate backlogs.

DOL recently announced that it has moved the Foreign Labor Certification Division within ETA. Formerly a part of the

U.S. Employment Service, under John Beverly, the Division is now part of the Office of Workforce Security (formerly the

Unemployment Insurance Organization), headed by Grace Kilbane. According to DOL, this change will enable the agency

to comply with training bill that was passed last year and should have no impact on daily operations.

With long backlogs continuing and even increasing, the Department is coming under increasing pressure to propose a major

reengineering of the labor certification programs. While the PERM program has not received top priority recently, it and

other proposed changes are sure to be readdressed in coming months. Employers should contact their immigration attorney

for the latest updates.

Note: The information provided herein is of general nature, and should not be construed as legal advice.