For Georgian companies: how NOT to recruit foreign labor

Editor’s note: This article was written by a lawyer Charles Kuck as part of Kuck Baxter Immigrationthe sponsorship of Atlanta World.

Charles Kuck

Desperate times call for desperate measures to Georgia companies that need workers and, unfortunately, some abuse the visa system to fill positions.

Certainly, Georgia’s booming new investments and business expansions in the manufacturing and technology sectors require foreign workers to fill skilled jobs. And companies simply cannot find enough qualified domestic talent.

A recent case involved Mexican engineers who were brought to Georgia on NAFTA Professional (TN) nonimmigrant visas by a recruiting agency promising them high-level technical jobs. They ended up making the manlabor at parts suppliers for KIA and hyundai. They could not, however, leave their positions, because their legal authorization to work in the United States depended on TN visas sponsored by this employer.

This is just one example of a visa fraud case that demonstrates a structural flaw in the treaty-based TN visa system. The TN visa is designed to bring canadian and Mexican professionals in the United States to fill positions in one of the 60 trades of NAFTAmost of which require at least a bachelor’s degree.

Georgian companies resort to the TN visa because they can’t find the right workers here and they don’t have any other legal way to get them. And, with the pace of new investment in the state, the problem is not going away.

Then how do are companies getting the talent they need? The answer, ultimately, lies in legal immigration reform at the federal level.

But in the meantime, Georgian businesses should take the following steps:

1. Know your visa options for temporary foreign workers.

Companies large and small are constantly wondering how they can recruit workers. Often my answer is “luck”. There are only a handful of legal channels to recruit foreign workers.

If a company does not have a foreign entity, which would allow it to bring foreign workers here on L-1 visas, its only options are:

  • H-1B Visas: These work visas are limited to 85,000 per year, require a bachelor’s degree and are issued through a lottery system once a year in March and April, which has, at best, a 20% chance of winning.
  • H-2B Visas: These are limited to 66,000 per year and issued by lottery twice a year. But they are expensive to process and there is never a guarantee of getting the visas at the consulate, even if they are approved by the Ministry of Labour and United States Citizenship and Immigration Services (USCIS).
  • O-1 Visa: These nonimmigrant visas are for people with “extraordinary ability” who come to the United States temporarily to use that ability for work. This category is actually very useful for people with unique skills or substantial experience.
  • TN visas: These visas are intended only for Canadian and Mexican professionals to perform jobs identified in the United States-Mexico-CanaOK (USMCA; formerly NAFTA).

Apart from these visas, there are no other legal options for temporary skilled workers. Our current legal immigration system was designed in 1990, when the economy was based primarily on manufacturing. Now we have a system from 1990 trying to serve a 21st century service economy.

We have a system from 1990 trying to serve a 21st century service economy.

2. Use visas only for the purpose for which they are intended.

The TN visa is a great tool, and frankly, one of the easiest to apply for. But, companies using them should be careful – issuing TN visas under false pretences technically amounts to human trafficking if these immigrant professionals are forced to work in jobs unrelated to their TN visas.

Herein lies a structural problem in the way TN visas are issued. The US State Department has primary responsibility for TN visas outside the United States, but it has no investigative functions inside that country and no system to track applicants and employers. Unlike other work visas, such as the H-2A guest worker program that brings tens of thousands of temporary agricultural workers to Georgia each year, TN visa holders and their employers are not closely monitored.

If USCIS had been tasked with issuing TN visas, it would have considered the aforementioned small Georgian engineering company’s unusual request for 40 TN workers. In the future, this will not be a problem as US consulates in Mexico and Canada will be on alert to double-check companies requesting a large number of engineers or analysts. But this question reveals another flaw in our immigration system.

3. Exercise caution with third-party employment agencies.

Many Georgian companies use third-party placement agencies to hire foreign workers, placing the onus on the agency, not the employer. This arrangement may allow for fraud since companies are not held responsible for abusing the visa system.

The Biden Administration could easily fix this shortcoming with a simple regulatory change that states that companies must share responsibility with third-party contractors when issuing visas to immigrant workers.

But President Biden and his staff are completely uninterested in doing the right thing on me.immigration in general. director of the United States Domestic Policy Council Susan Ricefor example, put immigration on hold.

4. Design a long-term strategy to recruit foreign workers.

The COVID pandemic and the massive retirement of baby boomers have opened the eyes of American businesses that can no longer find the workers they need. Georgia presents itself as a great place to do business, but companies that open operations here cannot find the workers they need.

Some are so desperate that they open offices overseas just so they can bring foreign workers to their US facilities. The fact that companies are doing this shows how broken the system is.

If a Georgian company has a foreign entity, it can use various temporary work visas to bring foreign workers here:

  • Visa L1: Foreign employees of a US company can use L1 visas to work for that company in the United States. The company must train foreign workers (at the foreign facility) before bringing them to the United States and maintain active operations in both countries.
  • EB-3 Visa: Employment-based third-preference immigrant visas allow skilled and unskilled workers, professionals, or others to work in the United States if they are full-time employees of a U.S. company and that no American talent can be found to do the job.
  • H-3 Visa: Non-citizen interns or special education exchange visitors may use H-3 visas to temporarily come to the United States for employment-related training for work that will be performed in locations outside of the United States. United. The training must not be available in the applicant’s home country.
  • Visa B1: These visitor visas are for non-immigrant business people who come to the United States to consult with associates, attend a conference, negotiate a contract, set up a factory, or perform other work-related activities.

We are currently seeing record use of the Employment-Based Third Preference (EB-3) program to bring skilled workers into jobs in Georgia.

5. Consider green cards.

The process of obtaining H-2B visas to bring in temporary nonimmigrant skilled workers can take 6 to 10 months, and companies must prove that there are no qualified U.S. workers willing to do the job. . This delay is untenable when companies need specialized work done quickly.

As temporary work visas are difficult to obtain, a viable option for Georgian businesses could be to go through the worker immigration process to the United States as permanent residents. It may take two years, but it may be more profitable than trying to find workers in the United States

Thus, companies are increasingly asking foreign workers to sign multi-year contracts so that they can apply for green cards, even if they only need their services for a short time. One difficulty, however, is that if foreign workers are already in the United States illegally, they cannot apply for green cards, except under a few limited exceptions.

Georgian companies, in general, need to plan ahead to bring in foreign workers. Tech companies, in particular, are expected to consider their talent needs for years, given the difficulty in obtaining visas.

The visa debacle highlights the glaring inefficiencies of our immigration system.

6. Demand federal immigration reform.

The skilled labor shortage in the United States is not going away; in fact, the situation is getting worse as 80 million baby boomers retire with only 40 million Gen Xers to replace them. Starting in 2022, we need to admit over a million immigrants a year just to maintain our population! Unless we get more bodies here quickly, this problem is actually going to get worse.

Additionally, we currently have 2 million fewer legal immigrants in the country than we should have due to the COVID pandemic and the old President Assetimmigration restrictions. In 2020, we admitted the lowest number of legal immigrants since 1789!

If we just had 10 US senators who would vote to approve House Bill HR 6, the American Dream and Promise Act of 2021, we could fix our immigration system in this country. But at the moment we don’t.

Georgian companies, meanwhile, should exercise caution when seeking foreign workers and seek expert advice on the best ways to fill critical positions.

Contact us at Where (404) 816-8611 to find out what you can do to attract the foreign talent you need.

Michael A. Bynum