RECRUITMENT DIFFICULTIES

If there is a choice, use the E-l essential skills or L-1B specialised knowledge categories because they do not require recruitment. The recruitment process puts the employer in an awkward position. The employer hopes to prove that no qualified US workers exist, and often does that by finding reasons not to hire the people answering the job advertisements. Understandably, the jilted job applicants often complain to the Department of Labor. The cost of advertising and inconvenience of interviewing undesirable applicants often make the process distasteful.

OTHER H-2B APPLICATIONS

Use the H-2B visa when your employees fit into a category of workers who customarily use the H-2B visa, or there is no other choice. Sheep ranchers in Montana use H-2B visas for Basque shepherds. People who want to hire domestic help or someone to take care of their children use H-2B visas for nannies and amahs. Restaurants sometimes use H-2B visas for chefs. Farmers use H-2A (agricultural) for farm workers. Manufacturers, when all else fails, use H-2B for technicians and trainers.

Using the H-2B visa for technical workers-marine products technicians

The marine products industry uses H-2B visas to send technicians to Alaska to process pollack, salmon, herring roe, surimi and other species of fish. The US suffers a shortage of marine products technicians qualified to service foreign markets. Japanese, Korean and Norwegian companies send hundreds of marine products technicians to Alaska on a seasonal basis. The technicians work on short-term contracts. There is a long history of negotiation in this industry, with the USCIS and Department of Labor on one side and the marine products industry in opposition.

The US packer wants to ensure that the product meets buyers’ specifications before it reaches the market. The buyer who distributes the products abroad wants assurance that the product meets his market requirements. To meet contractual requirements, the buyer must send its technicians to each packing plant to render technical assistance and quality control. This is a perfect scenario for using H-2B visas.

Since there is no American market for most of the marine products exported to Japan, few qualified US workers exist. And since foreign technicians only work on short-term contracts, there is no sense in applying for long-term visas, such as E-l essential skills or L-1B specialised knowledge. Employers may spread advertising and recruitment over many visas, as up to 50 technicians often apply at the same time. Advertising and recruitment costs can be prohibitive when applications are made for only a few technicians at a time. Finally, because of its long history of negotiation, the Department of Labor understands the need for foreign technicians and, to an extent, cooperates with the industry.

The marine products industry offers only one example of using the H-2B visa for technical workers. The same approach may be used for all sorts of non-degreed skilled labour, such as welders, machinists, electricians and more.

REVIEW OF GUIDELINES FOR SPECIALISTS

• All things being equal, use L-1B or E essential skills as opposed to H-2B.
• Use E essential skills or L-1B specialised knowledge for long-term technician employees. If an employee only works on a short-term basis, consider the H-2B category.
• Choosing between L-1B or E essential skills visas usually hinges on whether you feel the USC1S or a consul is more receptive to supporting your situation.
• Always apply for the maximum number of H-2B positions. You may have to hire US workers. You want to make sure US workers can be hired while still bringing in your minimum requirement of foreign employees.
• To show good faith in recruiting American workers, provide the Department of Labor with plans to eliminate dependence on foreign workers.
• Remember, cooperate with the Department of Labor during the H-2B process, and don’t get frustrated.

BALANCING FOREIGN AND US EMPLOYMENT

The US subsidiary or branch office of a foreign company often employs more alien workers than Americans. Many companies prefer to use their own employees to make large purchases, handle money, or ensure quality control. These factors combine to limit the number of American workers above the secretarial level in the US operation.

Consulates often notice the high ratio of foreign professional workers and strongly suggest hiring more local employees. For immigration purposes, green card holders are US workers. Many companies solve the consular-imposed problem by obtaining green cards for managerial staff.

PREVENTING THE DISCRIMINATION LAWSUIT

Discrimination and sexual harassment law suits most often arise in connection with terminating the employee. The US is a litigious society. Foreign workers, unfortunately, are quick to learn our bad habits.

US workers must be paid the same salary as the foreign worker for the same work. Foreign transferees are often compensated for their overseas work by receiving bonuses paid from abroad as well as enhanced company benefits and housing allowances.

When evaluating the wage discrimination issue, pay close attention to the respective compensation and promotional packages offered to foreign and American workers. If the foreign worker receives a higher compensation package than the US worker for the same work, be prepared to face a lawsuit. Also expect litigation if the US employee does not progress through the company ranks at the same rate as the equally qualified foreign worker. The federal Equal Employment Opportunity Commission often supports such lawsuits in order to uphold anti-discrimination laws.

Branch offices worry less about these types of concerns. Most FCN and BIT treaties, in so many words, give branch offices the right to discriminate in favour of treaty nationals holding E-l or E-2 visas. There is no right to discriminate in favour of H and L visa holders working for a treaty company. The US Supreme Court made that decision and it’s still the law, though it is currently under attack. Given the correct facts, this exception to the civil rights laws may change. This is one of the few advantages of operating as a branch office.

The law requires all employers to provide equal pay for equal work. Equal pay for equal work means general equality of the net result, not identical benefit and compensation packages. Equal pay for equal work, full disclosure of job duties and compensation packages, as well as general fairness, will solve most problems between foreign and local staff members.

Finally, beware of sexual harassment law suits. Obviously, touching, direct sexual advances and leering constitute sexual harassment. Higher ranking employees imposing themselves on lower ranking employees, as well as off-colour jokes about either sex may constitute sexual harassment. Most insurance companies do not insure corporate officers against sexual harassment law suits. There’s only one cure, behave!