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As companies struggle to obtain work visas for foreign employees in the aftermath of Sept. 11, the following scenario is all too common: Glob-Telcom, a U.S.-based company with offices throughout Europe, Asia, and the Americas, lands a $100 million contract to provide electronic manufacturing services. To meet the schedule for delivery, Glob-Telcom needs to augment its U.S. corps of workers with seasoned engineers from its offices abroad. These foreign workers are critical to the new contract because they serve the dual purposes of immediately staffing services and training new U.S. workers as they join the operation. Although the L-1 visas (for intra-company worker transfers) was designed for this purpose, the company meets with significant queries, delays, and even denials when it tries to bring these workers to the United States. The visa obstacles have created substantial costs, compromised deliverables on contracts, and come dangerously close to causing Glob-Telcom to lose this major contract to an offshore competitor. The hypothetical Glob-Telcom is not alone. A 2004 study by eight business associations indicates that visa delays alone are responsible for some 31 billion in lost dollars to U.S. businesses. Companies like Glob-Telcom that rely on seamless global travel for their personnel recognize some of the causes of the increased delay. The American visa process has been repeatedly revised and noticeably delayed in response to Sept. 11 and a challenging economic environment. Some 3.7 million immigration cases are caught in a backlog of processing of more than six months, some of which have been stalled for more than two years. At the immigration agencies, field officers are caught in a mind-set of “stop and yield” — at times denying even the most straightforward applications and imposing requests for additional evidence, on-site interviews, and burdensome reporting requirements. Many lawyers who assist companies with global staffing puzzle over how to navigate the U.S. visa system. Enhanced security checks, new visa procedures, and lengthy queues also present challenges. Attorneys should consider these issues in preparing the employer’s sponsorship petition, the applicant’s visa application, the applicant’s entry into the United States, and the applicant’s post-entry transition. THE EMPLOYER’S PETITION For most employment-based visa categories, a preliminary petition to demonstrate eligibility must be filed with the Department of Homeland Security’s U.S. Citizenship and Immigration Services. The transfer of immigration processing to the Homeland Security Department highlights the post-9/11 security focus of government officials and reflects increased vigilance in all aspects of the immigration service process. Security checks are automatic, with cross-agency checks run on the visa history and background of every applicant. Citizenship and Immigration Services also has a backlog inherited from the former Immigration and Naturalization Service that includes about six million cases in the pipeline. More than half of the cases have waited far beyond target adjudication times. In spite of a program for backlog reduction announced by agency leadership in June 2004, field offices remain caught in a pattern of inconsistent adjudications and reflexive requests for additional evidence in too many cases. The result is additional time and cost burdens for businesses and sometimes severe impact on the lives and work of visa candidates. Absent a $1,000 premium processing fee for quicker service, most nonimmigrant visa petitions are taking at least four months to process. Limited quotas in certain visa categories that diverge completely from business reality are also hurting U.S. companies’ ability to bring in and retain international talent. The H-1B visa, which applies to workers with technical or professional skills and frequently covers foreign graduates of U.S. degree programs, has been unavailable for close to eight months this year because the limited number of visas was rapidly exceeded. In this environment, companies must engage in pre-emptive planning on the visa process as soon as a candidate has been identified. In the hypothetical Glob-Telcom example, the company should have identified potential workers even before it landed the contract. It should have engaged in a detailed relocation assessment that included visa strategy before closing the deal with the new U.S. client. Such planning must include an evaluation of the visa history of each candidate, as well as accompanying family dependents, so the company is not surprised by a security “hit” that could derail an application. The company should file the employer’s petition, requesting permission to bring in a foreign employee, in all identifiable visa cases six months in advance of the proposed start date or expiration of a previous visa. Petitions should be precise and descriptive, with a clearly articulated focus on the exact business needs the candidate fulfills. THE VISA APPLICATION Once the Citizenship and Immigration Services has approved the employer’s petition, the candidate can apply at a U.S. consulate abroad for the required travel visa to enter the United States. The State Department now requires in-person interviews of virtually all new visa applicants, and biometric requirements (involving fingerprints and digital photos) are being rolled out to consular posts worldwide. Security checks are required based on nationality and travel history, among other things. They also are based on whether the traveler, regardless of nationality, will be working with technologies deemed sensitive to national security, including chemicals, aerospace, or advanced computers. Although the State Department is working to standardize and thereby speed up the process, the queues for these security checks often frustrate business users, especially with longtime employees posing little security risk. In the past, visa renewals for workers in the United States could be accomplished without a trip abroad, by mail to the State Department. Given new biometric security requirements and the need for in-person interviews, that process is no longer available. Establishing direct communications with the U.S. consulates where a company’s employees routinely apply helps to avoid unpleasant surprises when visa procedures change. Forming a liaison with the consulate is particularly important where the company uses sensitive technologies or regularly employs nationals of designated “terrorist states.” Companies who develop relationships may be able to obtain special handling when a business need mandates a rapid turnaround. In all cases, visa candidates should check procedures at the U.S. consulate well in advance of international travel. Visa applications should include letters from the company sponsor that address any “hot button” issues, clearly confirm eligibility, and emphasize the unique value of the candidate’s experience. Finally, it is important that any previous visa problems of the candidate, spouse, and children be addressed before lodging the visa application. AT THE PORT OF ENTRY Security checks are a normal part of the admission process at 119 U.S. air and sea ports and will be rolled out at land ports in the next year. Departure checks are also in place at 15 ports. With the volume of admissions and the pressure on Customs and Border Protection officers not to make errors in the post-9/11 era, more travelers can expect to be pulled into secondary inspection and asked additional questions about their trip. Thus the port has become a delicate arena even for frequent travelers. Follow these best practices to assist in entering the United States. • Visa holders should carry backup documents on all trips — e.g., recent pay stubs, a photo identification in addition to the passport, the original approval of the employer’s petition by Citizenship and Immigration Services, a full copy of the petition and exhibits (including relevant academic and/or employment records), and the birth and marriage certificates for the visa holder’s accompanying spouse and children. • Because of system and procedural inaccuracies, it is important that each visa holder keep her own record of each entry and exit from the United States and the visa status on each admission. Employers should remind employees with visas to check their admission documents, Form I-94, upon re-entry to the United States. This precaution also extends to family members who travel separately. • In problem cases where reasons to reject entry might exist, companies should discuss the entry in advance with port officials and verify the specific proof that will assist admission. AFTER ENTRY In this security-enhanced era, visa holders may have to produce their visa documentation repeatedly, even after admission. For example, the department of motor vehicles in many states is now requiring proof of lawful presence. In addition, recent regulations from the Department of Homeland Security increase the burden on schools, colleges, and universities to report on and track foreign students. As an enforcement orientation permeates the U.S. immigration agencies, it is all the more important that U.S. businesses establish top-tier compliance policies for renewing visas and work authorizations in a timely manner. Lest security procedures overwhelm all other considerations, the U.S. legal and business community must educate the government at all levels of its continuing need to have access to a global talent pool. American employers such as Glob-Telcom need immigration policies that allow them to compete in the global marketplace. Elizabeth Espin Stern is a partner and head of the business immigration practice in the D.C. office of Shaw Pittman. She can be reached at [email protected].

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