Foreign workers, jobs must meet eligibility requirements

Timothy E. Wichmer and Raymond R. Bolourtchi are partners at Cofman Wichmer Bolourtchi & Bernhardt, PC, in St. Louis. This column is made available by The Missouri Bar as part of Law Day.

Foreign workers can often make or break a company's fortunes. This is true at both ends of the spectrum, whether the need is for degreed professionals or seasonal laborers. Aliens who qualify under the H classifications in the Immigration Act can provide seasonal- to long-term temporary help for a business. Even in a time of instability in immigration law and policy, companies can secure the services of these foreign workers relatively easily.

Professional workers

The H-1B classification requires both: (a) that the position is a specialty occupation, and (b) that the foreign worker meets the requirements for the specialty occupation.

"Specialty occupation" means an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent)."

The required degree must be in a specialty field, not merely in a general, liberal arts field. For example, a degree in computer science prepares an individual for a job in software engineering. In the business field, jobs in accounting, marketing, and finance are specialty occupations.

To meet the requirements of performing in a specialty occupation, the foreign worker will need:

full state licensure, if required in that state;

completion of a bachelor's or higher degree in the specific specialty; or

education, training, or experience in the specialty equivalent to the completion of such degree.

The most common means of qualifying for H-1B classification is through evidence of a bachelor's or higher degree. In some circumstances, a worker may qualify for the specialty occupation based on equivalent experience.

H-1B workers can work for up to six years, and longer in certain circumstances.

Temporary/seasonal workers

This category is for workers, regardless of level of education acquired, who fill jobs that by their nature are temporary or seasonal. The employer's need must generally be for a year or less, and can be either:

a one-time occurrence where a temporary event of short duration has created the need for a temporary worker;

Seasonal need where the position is tied to a season of the year, and that the need is of a recurring nature (such as landscapers);

peakload need where there is a need that is not likely to recur; or,

intermittent need where the employer has not employed permanent workers for the position.

Unlike the H-1B category, the employer must prove that no U.S. workers who are capable of performing the job are being displaced by the foreign worker(s). H-2B workers can receive up to two one-year extensions.

Changes in the structure and procedures of the immigration agencies adjudicating these petitions make it imperative to seek qualified immigration advice prior to the decision to proceed. However, with good planning, the workers a company needs to succeed are within easy reach.