The Law Offices of Robert Nadalin

Why Should An Employer Include Immigration Case Support As Part Of Its Talent Recruitment Strategy?


The U.S. unemployment rate has recently reached a record low of 3.9%. It has become increasingly challenging for employers, especially in STEM-related fields, to recruit and retain skilled engineers, scientists, and researchers. Providing immigration case support is a way for employers to expand the talent pool of potentially qualified employees.

Are Salaries Paid To Foreign Workers Less Than Those Paid To US Workers?

The most common work visa, the H-1B, specifically requires that any sponsoring employer pay the greater of the normal in-house wage for the position, which is what other similarly situated workers inside the Company are paid, or the prevailing wage, which is the cross-industry wage paid to similar workers by other employers as confirmed by a qualifying market-based salary survey, such as the Department of Labor’s OES survey found at: http://www.flcdatacenter.com/OESWizardStart.aspx . The applicable law regarding the wage requirement can be found at: 20 CFR § 655.731(a). The regulations governing the requirements for a qualifying salary survey can be found at: 20 CFR § 655.731(b)(3)(iii)(B).

Why Would A Company Not Hire US Workers?

When available, most employers would prefer to hire U.S. workers, which include U.S. citizens and lawful permanent residents (green card holders). However, in many STEM-related master’s and PhD programs, 50 to 70 percent of the students may be foreign students. Many of those students return to their home countries, but some receive job offers from employers seeking to hire the best and brightest candidates in their efforts to develop new cutting edge technologies.

Is A Sponsored Employee Required To Remain With His Or Her Sponsoring Employer?

Some visas, such as E and L visas, can be very difficult to transfer to another employer; however, most of the other common work visas, including H-1B, TN, O-1, among others, can more easily be transferred to a new employer by filing the correct petition or application documentation.

What About The Lawful Permanent Residence (Green Card) Processes?

Most employers who provide foreign worker visa support also support the lawful permanent residence (green card) process. The temporary work visa processes, including H-1B, TN, etc., can often be completed within a number of weeks. The lawful permanent residence process, by contrast, often takes years to complete. If an employee moves to new employer before the process is completed, steps often need to be repeated, which can significantly delay the time that it takes to complete the process. This provides a strong incentive for an employee to remain with his or her sponsoring employer.

What Happens If A Sponsored Foreign Worker Moves To A New Employer Before Completing A Lawful Permanent Residence Process?

As noted above, a move to a new employer often means that steps need to be repeated. In general, the farther along the employee progresses in the process the more parts of the process become grandfathered. Most employees are required to go through the PERM labor certification process to confirm that the Company went through the correct procedures to confirm an unavailability of able, available, or qualified U.S. workers. If an employee moves to a new employer after a PERM labor certification is in place, he or she may be able to continue to rely on that process to support additional H-1B extensions past the 6 year limitation placed on that visa status, but would need to repeat the PERM process with a new sponsoring employer in order to become eligible to complete the LPR (green card) process.

If the employee has obtained an approved I-140 petition, he or she would still need to repeat a PERM process if the sponsoring employer changed, but would still retain the saved place in the green card quota line – which can be a significant advantage for persons born in India or China who face a severe quota backlog restriction. If the employee has obtained an approved I-140 petition, has an I-485 application (last step of the 3-step green card process) that has been pending for at least 180 days, and moves to a same or similar position with another employer, the entire green card process can be ported to the new employer by filing an I-485 Supplement J application with USCIS.

In summary, it is sometimes possible to move parts of the process to a new employer, but that involves risks as well as potential delays in the time that it can take for the employee to acquire lawful permanent residence status. For these reasons, the LPR process is often a highly valued benefit that can tie the sponsored employee closely to the sponsoring employer for the many years that it may take to complete the process.

For more information on Immigration Support As Recruitment Tool, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (619) 234-8875 today.

The Law Offices of Robert Nadalin

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