Hiring H-1B candidates

mstechphr · September 2003

Tammy Binford
Editor, M. Lee Smith Publishers

Is it okay for an employer to post a job advertisement and state in the ad they will not support H-1B applicants? We do not discriminate but if we want to find candidates who are legally qualified to work in the US without having to go through the H1-B process, how do we do so and stay within the constraints of the law? In the past we have supported H-1B candidates but would like to stop that practice as it is very expensive and time-consuming. Does anyone have any suggestions as to how to word this if it is legally acceptable?

Steve McElfresh · September 2003

Tammy,

I don't know if it is legal (and am surprised, if I understand you byline, you or your colleagues don't know), but I would share your apparent caution.

However, even if you don't want to initiate a visa process with a non-working immigrant, you should note that it is now much easier, cheaper and quicker than it used to be to transfer an existing H-1B to a new employer (when the person is working in a comparable job).

Regards,

Steve

Steve McElfresh, PhD
Principal
HR Futures

408.605.1870

System · September 2003

Excuse my ignorance, what the heck is an H1-B?

mstechphr · September 2003

Tammy Binford
Editor, M. Lee Smith Publishers

H-1B is a non-immigrant classification. check [url]www.bcis.gov[/url] for additional information on classification of alien residents.

amyhedlu · September 2003

An H1-B is a 3 year visa that allows an immigrant to work in the US. It is for a skilled worker to perform services in a specialty occupation. They are required to hold a certain level of degree.

Tony Kessler · September 2003

Steve,
Thanks for jumping in to respond to the question from mstechprh, a first-time poster (welcome to Forumania!) who included Tammy's name and title perhaps as a salutation or a mailing address of sorts. Coincidentally, you all will begin seeing Tammy's name more frequently starting next week, when she'll be serving as the Forum monitor. Hope this helps. tk

Tony Kessler, director of editorial
M. Lee Smith Publishers LLC
(615) 661-0249 ext. 8068

sonny · September 2003

Welcome Tammy. .did we run James off?

mstechphr · September 2003

Sorry about including Tammy's name. You're right, this was my first post and I see my mistake.

Tony Kessler · September 2003

mstechprh, no problem, I hope you enjoy the Forum. BTW, James hasn't left us, he's still the high sheriff. The rest of us help out whenever we can, and at least one of the bunch, including James, is the official Forum contact for the week. We rotate that honor! This week's contact is Brad, as noted in the "main lobby." Next week, it's Tammy. Hope this helps. tk

System · September 2003

Huh? Am I still here? x:-/ Never mind, I'll just crawl back under my rock.

James Sokolowski
HRhero.com

Steve McElfresh · September 2003

mstechphr,

The addressing mistake in my reply was as much mine as yours, as the "real" (registered) name of each poster is clearly given at the top of each message box. If I hadn't been lazy, I would have noticed the different identities and known what happened.

And, a hearty "Welcome!".

Regards,

Steve Mac

Steve McElfresh, PhD
Principal
HR Futures

408.605.1870

Peyton Irby MS · September 2003

>Tammy Binford
>Editor, M. Lee Smith Publishers
>
>Is it okay for an employer to post a job advertisement and state in
>the ad they will not support H-1B applicants? We do not discriminate
>but if we want to find candidates who are legally qualified to work in
>the US without having to go through the H1-B process, how do we do so
>and stay within the constraints of the law? In the past we have
>supported H-1B candidates but would like to stop that practice as it
>is very expensive and time-consuming. Does anyone have any suggestions
>as to how to word this if it is legally acceptable?

Peyton Irby
Editor, Mississippi Employment Law Letter
Watkins Ludlam Winter & Stennis, P.A.
(601) 949-4810
[email]pirby@watkinsludlam.com[/email]

Peyton Irby MS · September 2003

it is not a good idea to put in the ad about not hiring persons in H-1B status. a claim of national origin discrimination could result. when persons apply, your obligation is to verify eligibility to work in the U.S. and you are not obligated (unless you agree to do so)to prepare proper immigration documents.
Peyton Irby
Editor, Mississippi Employment Law Letter
Watkins Ludlam Winter & Stennis, P.A.
(601) 949-4810
[email]pirby@watkinsludlam.com[/email]

Don D · September 2003

[font size="1" color="#FF0000"]LAST EDITED ON 09-05-03 AT 01:26PM (CST)[/font][p]Correct me if I'm wrong Peyton; but, it would not be illegal or even ill advised to state in the ad that you will consider for employment only those currently eligible to work in the United States of America. Of course that would allow those currently here on approved H1-B (and other approvals) to sift into the mix. But also, there's no obligation to allow one of those to transport his current approval into your job situation. Even those who may be here legally on such as an H1-B, working somewhere else, or recently terminated, assuming the status is portable; they would still cost your company thousands of dollars if your goal is to move them all the way to green card. There is a wave of people out there (and their handlers) who are marketing themselves as having a transportable visa status. All they want is a toehold in your door which gives them a little more breathing room as far as staying here legally. The total process takes as long as seven years, seeming like 20 to the HR guy fiddling with the paperwork.

STEVE MC: I am surprised you didn't click on her user profile to see that she isn't a ML Smith employee. She is in Oxford, MS and we are all still smarting from the visit last Saturday by those awful green and yellow colored Oregon Ducklings that whipped us. Oxford, though, is home of the Manning clan of some fame.

Steve McElfresh · September 2003

Don,

I have had much better experience with H-1s than you have, apparently. They have been generally great employees, before and after the Green Card, if they go that far. And, as with the H1, there is no requirement that the employer fund the Green Card. Yes, you still have work to do to support the process, but the hard cash can be on the employee's nickle.

I acknowledged and am embarrassed by my laziness re: the poster's identity. But I am delighted that my moss-covered neighbors to the north whipped the Bulldogs, despite a valient, against-all-odds, comeback effort.

Regards,

Steve Mac

Steve McElfresh, PhD
Principal
HR Futures

408.605.1870

Don D · September 2003

>Don,
>
>I have had much better experience with H-1s than you have, apparently.
> They have been generally great employees, before and after the Green
>Card, if they go that far. And, as with the H1, there is no
>requirement that the employer fund the Green Card. >
>
Steve: Notwithstanding your poor choices of football teams with which to allign yourself; I'm not implying that ALL of my experiences with H-1s have not had good outcomes. Most have had good outcomes; but, I think 'outcomes' and 'experiences' are two far different things. It's a matter of weighing the pain and anguish against the end result. I had a great outcome following a proctoscopic exam; but, that doesn't mean I want to repeat the experience.

mstechphr · September 2003

Don, even if we state in the ad that we "will only consider applicants for employment who are currently eligible to work in the US", that still does not solve my problem. If an applicant is working for another employer on an H-1B, he/she is "technically" eligible to work in the US - just not by us - so they can check "yes" to that question, we go through the entire hiring process, etc until we hit the I-9 and then we find out they have an H-1 with another employer. So...how do we get around that and stay within the constraints of the non-discrimination laws?

Thanks

Don D · September 2003

I'm afraid I'll have to defer to the labor attorney on that one. But, you may only get the answer from a lawyer over the phone, not on the Forum.

Pork · September 2003

MSTECHPHR: The resident expert in this area is James Harrell, who has since retired, but did occupy the seat in charge of these actions in the great magnolia state. You may reach him at:dawson_international@msn.com! No one knows the law better than him; he is now making a living at taking care of these issues and recruitment and placement of qualified persons from overseas into your organization. If there are special points of interest in cutting through the "RED TAPE" to accomplish a legal hiring and placement action he has the special grease and butter to clear away mountains.

I will certainly be glad to rid this company of the illegals enrolled in our company as legals. Out of 15 we have 3 that are here legally, the rest are confessed illegals with whom we have worked for now over 2 years to get their status changed. There is administrative movement, but we have reached an impass with DOL on an issue of "advertising for the recruitment and hire of a US CITIZEN to fill a position which is currently filled by the illegals". I have refused to advertise, because that would be false advertisement and besides we did that when we first hired the employees as legal work permitted employees. DOL has threatened to cancel the "751 A & B action" if we do not advertise by September 9, 2003. I have written to congressional and senior DOL action to resolve this issue. I maintain that the DOL sponsored WIN centers is a state wide advertisement pool and all they have to do is accept their own program as having satisfied the requirement to advertise.

9/9 is coming and I'm probably going to do as PECO did and terminate after I have suspended each and sent them formally to the SSA to have their SSN and name mismatch fixed. A task that can not be done without INS action, which will not do anything until DOL approves. GOVERNMENT WORKS YOU KNOW, TO SECURE JOBS FOR INCOMPENTENT PEOPLE!

May everyone have a blessed afternoon and a fresh week-end, thank goodness the "dawgs" are resting in the Sherrill "DAWG HOUSE" licking the wounds received from the mighty DUCKS. The DAWGS just didn't wake up for the hunt until the DUCKS had flown back North and West. PORK

mstechphr · September 2003

I was given this response late today from another legal source:

"In an opinion letter dated August 6, 1998, by the OSC Special Counsel, John Trasvina stated that the employer would not be exposed to discrimination liability if the following questions were posed in connection with the new hire screening:

1. Are you legally authorized to work in the U.S.? ___yes ___no

2. Will you now or in the future require sponsorship for employment visa status (e.g. H-1B visa status)? ____yes _____no

If the applicant responds that sponsorship would be required, it would not be discriminatory for the employer to refuse to hire such individuals."

I will check with Mr. Harrell to find out if there has been any change/update to this opinion letter since it is 5 yrs old!

Thanks to all for your replies.

System · September 2003

[font size="1" color="#FF0000"]LAST EDITED ON 09-06-03 AT 06:30AM (CST)[/font][p]Pork's referral will not be able to give you legal advice on the wording of a newspaper advertisement. His office was involved in the DOL related technical processes of alien certification in response to an employer/sponsor's application to hire a non-resident alien. If you are trying to avoid that process, I would not suggest you need to contact people who make a living working with that process. In fact, what I hear you saying is that you want to AVOID that process entirely. If you are not looking to get involved in the immigration process, you would not need to contact those involved in that work.

Advice on the legalities of job ads should come from your labor attorney. The advice you posted earlier, that did come from an attorney, is still sound. It is legal to ask both of those questions according to counsel. The advice that Pork's referral would have been helpful in giving would have been related to facilitating the movement of the immigration process along for you, had you wanted to do that. He could tell you what the DOL/INS/Justice or Homeland Security Department requirement is for placing a recruitment notice in a paper and the ad coverage and necessary timelines, but would have no expertise in giving you advice on the legal wording of a job ad. I suggest your safest and most economical route is to simply email or read your ad wording (posted above) to your labor attorney for approval.

Hiring H-1B candidates

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