Another ? on hiring non-citizen

whoknew · March 2002

Although I recently received two negative responses to my question asking if I'm required to hire a qualified U.S. citizen over a non-citizen, I'm confused because of language I found in the Immigration and Nationality Act, Section 212(a)(14) which says that an alien may not obtain a visa for entrance into the U.S. in order to engage in permanant employment unless the Secretary of Labor has first certified that there are not sufficient U.S. workers able, willing, qualified and available for the employment.

In my circumstance, I'm filling a vacant professional position (bachelor's degree required) for which I have qualified U.S. citizens who are able, willing, qualified and available. Section 212(a)(14) of the Act suggests that my foreign applicants will not be able to obtain visas since I have U.S. citizens who have applied and are qualified.

What am I missing?

AnaFL · March 2002

The way I understand this to be is that if your "foreign" applicant has documentation showing that they can legally work in the US, they are to be treated exactly the same way as the US Citizens, without any partiality being shown to either group of people. Your only concern must be that they can show you proof of being legally allowed to work in the US by showing you any one of the documents listed in the I-9 Form.

It seems that the other info you list under immigration law would be something they would have to deal with before issuing visas to aliens, not for employers who are hiring people that are already legal to work in this country.

Being an ex-alien myself, I believe that you are looking at a law which applies to companies who are considering sponsoring an alien (who doesn't yet have authorization to work in the US), and then the dol has all sorts of rules with regards to profession etc. in issuing visas to these aliens.

Ana

Margaret Morford · March 2002

Ana is correct. If you are going to help the individual obtain documents to work in this country (does not already have documents), you have to prove that you cannot find another candidate that is qualified that is authorized to work in this country. You're usually applying for H1B status. You need an immigration lawyer. They can walk you through what needs to be done and make it happen because they usually have better connections in Immigration.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

SLAHR · March 2002

>Ana is correct. If you are going to help the individual obtain
>documents to work in this country (does not already have documents),
>you have to prove that you cannot find another candidate that is
>qualified that is authorized to work in this country. You're usually
>applying for H1B status. You need an immigration lawyer. They can
>walk you through what needs to be done and make it happen because they
>usually have better connections in Immigration.
>
>Margaret Morford
>theHRedge
>615-371-8200
>mmorford@mleesmith.com
>[url]http://www.thehredge.net[/url]

Actually, for H-1B status you do not have to prove that there are no qualified US workers. You just have to keep in mind that H-1B is a temporary status good for 3 years, renewable for a second 3 years. It is if a company decides to sponsor a worker for permanent residence status that they must prove there are no US workers qualifed for the position.

Another ? on hiring non-citizen

Comments