The Computing Technology Industry Association estimates that nearly 269,000 IT jobs go unfilled every year, costing U.S. businesses $4.5 billion in lost productivity. Many employers hire foreign workers to offset this labor shortage.
IT services providers and consulting firms are among those tapping into the foreign talent pool. If you’re considering this option, here’s a look at the legal and cultural issues you need to consider.
The government and the H-1B visa
The United States has a number of visa categories that allow foreigners to work in the United States temporarily. The H-1B program permits foreigners with at least a college degree to enter for a renewable three-year term if an employer petitions on their behalf. However, there is a cap on H-1B visas of 115,000 annually, and it is estimated that that limit will be reached by the middle of March 2001—less than halfway through the year. Under current law, the H-1B quota is scheduled to be scaled back to 107,500 in 2001 and to 65,000 in 2002.
Because the IT industry now constitutes more than 8 percent of the U.S. gross domestic product, some say its growth and competitiveness are being put in jeopardy. This is fueling a debate about expanding the H-1B visa program. Many say without sufficient numbers of highly skilled workers, businesses will be forced to outsource jobs overseas or cease to expand altogether, adversely affecting economic growth in the United States.
Paperwork is the biggest obstacle to hiring foreign workers. Record-setting low unemployment, combined with the ethnic makeup of the workforce and the federal government’s emphasis on enforcing immigration laws at the worksite, have created complex problems for businesses. The good news is that more than 50 percent of H-1B visa holders end up applying for a green card to stay in the United States permanently, which indicates that many foreign hires end up as long-term employees.
Know the laws before hiring foreign workers
The first step every business must take before hiring foreign workers is to know the laws. It also helps to follow specific internal procedures throughout the hiring process because the burden of enforcing immigration laws in the workplace is placed squarely on employers’ shoulders. For each employee hired since 1986, the employer is required to have an I-9 form completed and on file. This means the employer must also verify all the information on the I-9 form, including the work authorization and identification of the worker.
The law sets forth that the employee—not the employer—chooses which documents to present for verification. If the employer asks for anything more, he or she could be faced with a discrimination claim. This presents a quagmire for the employer, because if any of the information is false, the government can hold the employer responsible. Sound confusing? It is.
“There is no easy solution to these problems for the business community,” said immigration attorney Kathy Manning. “Preventive measures should be taken to ensure the company has proper policies and procedures designed and implemented to achieve compliance with the law.”
If you only need a few employees temporarily, consider working with a contracting agency. An agency can take on the legal liability for the employee. If you decide to sponsor the employee yourself, find a qualified attorney who specializes in H-1B visas. If the process isn't done correctly, your company can face lofty fines, lose the employee, and be barred from sponsoring visas and citizenships.
When petitioning for permission to bring in a foreign employee, a company must fulfill certain requirements to obtain labor certification. These include:
- Having a specific type of worker in mind. A worker with an IT skill set may be preferred over one with solely a business application skill set.
- Proving that there is a sufficient number of qualified American workers. Federal labor certification rules dictate that a company must demonstrate that a forthright effort at recruiting American workers has been made. The company also must fully describe to the Department of Labor the qualifications of the position and the wage that will be offered to the foreign worker.
- Guaranteeing a fair market salary to the foreign worker. The wage offered must equal or exceed the prevailing wage and cannot be based on commission or bonuses unless the base wage is guaranteed.
An H-1B visa checklist
If you’re successful in bringing an H-1B visa worker to your firm, you’ll want to help with the transition that many foreign hires face. Here are a few tips:
- Explain the hierarchy of your business. Many foreign companies have somewhat repressive management styles. The concept of taking your own initiative is often a new one.
- Provide a mentor or “go-to” person on staff who is dedicated to helping foreign workers adjust.
- Provide training and advancement. Foreign hires are often stereotyped as techies. If you want to retain them, encourage them to branch out.
- Try to provide as much assistance and advice as possible on housing, child care, and transportation.
- Be aware that the more languages spoken in the workplace, the more trouble with communication a company can have. Offer English as Second Language classes (ESL) on-site.
- Help with visa matters. Because it’s possible to extend H-1B visas, plan ahead. A limited number of H-1Bs are available each year, so file early.
- Pay a good wage and treat your foreign hires well, like you would any other employee. Failing to pay a fair salary can mean losing the right to apply for additional H-1Bs for up to five years.
In a tumultuous industry, having a highly skilled IT professional for three to six years is a real advantage. If you help them get there, many foreign workers can become an asset to your consulting firm, lending their talent and expertise and giving you an edge over your competition both now and into the future.
Have you hired H-1B visa workers to help complete projects? What route did you take? What have you done to help these workers acclimate to living and working in a new country? Post a comment below or send us a note.