Heed Immigration Rules When Hiring Foreign Employees

Rosanna photo

A recent influx of jobs into the Western New York marketplace has left Buffalo area businesses in an interesting position — trying to find enough qualified employees to fill those openings. As a result, a number of companies, especially those needing to fill high-tech positions, may expand their search beyond U.S. borders.

That, however, can create unanticipated problems for companies not familiar with the process for filling positions with foreign nationals. In a nutshell, the process can be both complicated and expensive.

Michael Petro, an editor/reporter with the Buffalo Law Journal and Buffalo Business First, recently interviewed Berardi Immigration Law’s Managing Partner Rosanna Berardi on this very topic. Rosanna, who founded Berardi Immigration Law in 2005, has extensive immigration experience and a unique background in government. As chair of the American Immigration Lawyers Association Public Relations Committee, Chair of the Customs & Border Protection Liaison Committee and a member of the Citizenship & Immigration Services Liaison Committee, she is viewed as a reliable source of information by the news media.

Following are excepts from Petro’s recent article titled, “Heed Immigration Rules When Hiring,” which ran in a special report on immigration and cross-border counseling:

Growth and development in Buffalo is bringing with it job opportunities, and some positions may require the expertise of foreign nationals, according to immigration attorney Rosanna Berardi.

Like many in this region, she’s excited about what she’s seeing happening in the city and beyond but said she’s waiting “for the shoe to drop” if and when corporations are left in the lurch after failing to examine their immigration needs in light of an influx of foreign workers.

Berardi has seen businesses go through an elaborate job search and ultimately find someone they consider to be a perfect match — who happens to be a foreign national. The company picks a start date without first considering how it will bring him or her to the United States. That presents a roadblock for all involved, she added.

“The City of Buffalo is in a very unique position — one that we’ve been waiting on for many years — in that there is so much corporate growth and development being planned with the Buffalo medical corridor, SolarCity, UB 2020, all of these things that are bringing good jobs and such to Buffalo,” Berardi said.

“Although every company would love to just hire U.S. citizens all day long, sometimes for high-tech positions, there’s simply not enough U.S. workers or corporations need to seek foreign nationals to fill positions,” she said. “What we’re finding is the immigration side of that is often left until last.”

An uptick in such hiring is about to begin, she said, but getting certain individuals cleared to work in the United States can be a complicated and expensive process.

“I think in corporate culture across the board, people forget, ‘Oh, there’s a process for this,’ ” said the founder of Berardi Immigration Law.

An enormous challenge for sponsoring employers is gaining temporary work visa classification for potential hires. The H-1B visa program is a lottery system, capped at 65,000 to be chosen, with 20,000 extras going to foreign workers specifically with master’s or doctorates.

On April 1, the first day applications were accepted this year, 175,000 names were submitted by U.S. employers. A select few are considered as part of a second-chance lottery.

Companies also can prepare an O-1 petition to be considered for a visa, but those are strictly for foreign nationals with extraordinary ability or achievement in their fields.

The options are limited under immigration law, according to Berardi. The government only has a certain amount of ways to bring people into the country because of limited work permits, she said, and demand always seems to exceed supply. She said it’s important that companies, before hiring a foreign national, be proactive in talking to an immigration lawyer to see if the person is indeed going to have the chance to work in the States.

“What makes our job hard is that we’re constantly trying to fit a circle into a square and making sure a person qualifies under one of the immigration categories,” she said. “We can’t always bring in people in ways which would seem obvious, due to government restrictions.”

Berardi said a common pitfall for Buffalo businesses is forgetting to remember that Canadians are part of the U.S. immigration system. It’s different when someone is coming here to work, as opposed to when they’re just visiting.

“We sit on the U.S./Canadian border and it’s so easy for Canadians to come in and out of the U.S. that everyone tends to forget that they are also required to follow the immigration laws and have to get work permits and such,” she said.

To read the article in its entirety, please visit http://www.bizjournals.com/buffalo/blog/buffalo-law-journal/2014/08/heed-immigration-rules-when-hiring.html. And for advice on hiring foreign employees, please contact Berardi Immigration Law today to schedule a consultation.

Photo by David Marino
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