Business Immigration: Helping Companies Bring Foreign Nationals to the U.S.

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From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode, Debbie Merritt interviews a white collar immigration lawyer who talks about the charged political atmosphere she operates in.

Debby Merritt:

We're joined today by Melina LaMorticella, a 2010 graduate of Lewis & Clark Law School. Melina is an associate at Tonkon Torp, an 80 person firm in Portland, Oregon. Now, I know you work as a business immigration attorney for your firm.

Melina LaMorticella:

This part of the immigration law is different from what most people may think of first, which would be immigration of people who have family members in the United States, or people who were subject to some sort of political prosecution in their home country. You are focusing on people who businesses want to bring to the United States in order to act in some professional capacity.

Debby Merritt:

And so tell us about the legal constraints on that. What is it that a company has to prove in order to bring one of these workers?

Melina LaMorticella:

It depends partially on the capacity in which the company is trying to bring their employee into the United States. In general terms, there are foreign nationals coming to the US, they're roughly divided into two groups of people, and those are immigrants, people who are coming to live and work in the United States indefinitely. Immigrants are what we call green card holders, and then there are non-immigrants. And non-immigrants are people who are coming to the United States for a temporary purpose. And that could be to attend school, to travel or to work in a temporary capacity. What a company employer has to prove will depend on which category of visa they're seeking for the employee. In general, our clients usually bring employees in on a temporary non-immigrant visa, and after the employee's been here for a while, they'll seek an immigrant visa on their behalf.

For a lot of our clients, they use what's called an H-1b visa or an E-3 visa, and these are temporary work visas that are available to foreign nationals who are professionals who are coming to work in the United States in a professional capacity. And so that means that they're coming to work in an occupation that requires at a minimum a bachelor's degree. Then they have to demonstrate that they have the required degree. Sometimes it's really obvious that the position being offered to the employee's a professional position. If we're doing a petition for a software engineer or a doctor, we don't have to provide too much of an analysis regarding the professional nature of the position. However, if we're doing a petition for a marketing analyst or a computer systems analyst, there's just certain occupations that everyone else considers to be professional except the government. And then we have to go into some lengthy arguments there.

And sometimes we're also bringing people in to work in a capacity that's unusual. In the high-tech field right now, there's a new group of people, they're called user experience professionals, and it's this interesting hybrid of people who have a background in psychology design and then computer science. And really what they're doing is making software and interfaces that are friendly to the users. A petition for someone in that occupation is going to require a lot of explaining to USCIS.

Debby Merritt:

Explain that little bit of alphabet. So what is USCIS?

Melina LaMorticella:

USCIS is the United States Citizenship and Immigration Services, and this is the agency that used to be INS prior to 9/11. It's under the umbrella of the Department of Homeland Security.

Debby Merritt:

They're the ones who make the decisions on whether a visa is issued, I take it.

Melina LaMorticella:

So they're the agency that processes and approves immigration benefits from within the United States. Their counterpart outside the United States would be Department of State and the embassies, the consulates offices, consulates and embassies outside of the United States are in charge of processing immigration benefits abroad.

Debby Merritt:

So when you're working for a particular client, are you in touch with the consuls and embassies abroad or with the agency inside the United States or both?

Melina LaMorticella:

Sometimes both. And then sometimes we're dealing with the Department of Labor, and then sometimes we're also dealing with the US Customs and Border Protection, CBP, also part of Department of Homeland Security. So frequently the way it works is not all petitions, not all visas require this process, but this is pretty typical for a non-immigrant worker. Initially, the employer files a petition with the US Citizenship and Immigration Services in the United States, and that petition will include a description of the employee coming into the US, an explanation of the company sponsoring the employee, proof that the company can pay the offered wage, documentation of the employee's credentials. There could be some other items in there.

USCIS will process and approve the petition, or they'll issue what's called a request for additional evidence. Once the petition's approved, and they don't always approve it, sometimes they deny them, then they approve the petition and the case notification will go to the consulate. The employee then appears that the embassy or the consulate, and with proof of the petition approval and the embassy issues the visa. The visa entitles the employee to seek admission into the United States on the basis of the employer's petition. And then it's the US Customs and Border Patrol Protection that's ultimately responsible for determining the employee's admission. So any of those agencies along the way can decide that the employee is not eligible to come to the United States.

Debby Merritt:

Wow. It's a long road, a lot of red tape.

Melina LaMorticella:

It is a long road and it's a lot of red tape. And some of our clients are employees who, I explained earlier that usually employers bring foreign nationals in on a temporary basis before seeking a green card for them. And for employees who are from China and India and certain countries, there's a huge backlog for green cards. So they might be in this temporary non-immigrant status for decades and have to deal with this process constantly. And we can get a petition approved by USCIS and the embassy can decide to deny it for some reason. And then your client's stuck outside and can't come in, and sometimes that happens even for people who've been living and working in the United States for years.

Debby Merritt:

Tell us about the other hurdles. You've mentioned before that the person has to qualify as a professional, they have to win the lottery. And I think you said there was also a requirement that this is a need that can't be fulfilled within the United States.

Melina LaMorticella:

That's for immigrant visas.

Debby Merritt:

Oh, immigrant visas. Okay.

Melina LaMorticella:

For green cards, yeah. Yeah.

Debby Merritt:

So for the temporary ones, it has to be a professional, and then we have a lottery?

Melina LaMorticella:

Those are for the H-1b visas.

Debby Merritt:

Why do we limit that so tightly?

Melina LaMorticella:

That's a really good question. Why do we? And the number was created before we had a high tech industry. It was created during a time when our economy looked nothing like it looks now. I think the number, it's possible that that limit is in place to protect the US workforce.

Debby Merritt:

I imagine so.

Melina LaMorticella:

Yeah. And also there are certain members of Congress who think that all employment based immigration visas are subject to fraud. And so that's one way to keep control of it. I do want to mention, there's a lot of costs that go into these. The government filing fees for these petitions. It's almost $5,000, and that doesn't include the fees that are paid to our office to prepare and file these petitions.

Debby Merritt:

Wow. Do you have to pay the 5,000 if you lose the lottery?

Melina LaMorticella:

No, those filing fees come back, but not the legal fees.

Debby Merritt:

But still. But not the legal fees.

Melina LaMorticella:

But not the legal fees. And it's a little bit challenging to explain to your clients, your hiring needs are going to have to be based on this random lottery that will occur in April. And even if you make it in, your employee can't start till October. A lot of the employees who qualify for this particular visa, a lot of them are here as students. And then when they're finished with a degree program, they're eligible for temporary work authorization that allows them to work for any employer in the US without being sponsored for a visa as long as the work is in their field of study. And so they'll start working for an employer here who then decides to keep them on long term and sponsor them for these petitions. And that's when we get involved. But these are highly skilled professionals who've dedicated their, they're banking their career on working in the United States. And so when they don't make it into the lottery, it's really, it's a loss for them and it's a loss for their employers.

Debby Merritt:

What do you think about the political outcry nowadays about immigration? I can imagine some voters out there saying, well, so what? These are jobs that should go to Americans. We have more than enough lawyers, for example, to fill legal positions.

Melina LaMorticella:

We do, we do have a lot of lawyers. In fact, we were asked to look at filing an immigrant petition for a recent law school grad for one of the firms in town. She was a foreign national student who went to law school here and made it through the lottery, got the temporary work visa, and there's a limit on how long you can stay in the United States in that temporary status, and then you need to get a green card. So she was facing that limit. And we explained it was a petition that would require a test of the labor market. And there were so many unemployed law school graduates at the time that there was no way her petition would survive that test. So she ended up leaving the US for a while.

Debby Merritt:

And that brings us to that other important category, when we're going to move a worker from this temporary status, which is renewable for a period of time to a green card, that's when they face this issue of showing the labor market need.

Melina LaMorticella:

Yes. Yes. Not for all categories, but for a lot of professionals who are here in a temporary capacity, their employers, we work with them to conduct a test of the labor market, which involves recruiting for a position that's already filled and then proving to the Department of Labor that there are no US workers who are qualified and willing to fill the position. And it's a very tedious and somewhat ridiculous process. The Department of Labor regulations tell us, you have to follow all of your normal recruitment processes, and then they enumerate all of these exact steps and exact language that have to be included in the process. One of the steps is advertising in a Sunday newspaper of general circulation. No one recruits in the newspaper now. We're telling our clients, you've got to run this lengthy ad for employers that are in New York. This is an ad that has to appear in the Sunday, New York Times. It's crazy.

Debby Merritt:

Yeah. There are so many things like that. I think that when you're probating an estate, you have to publish in a newspaper about the estate so that any creditors know that they can come and make their claims. Again, who's going to read the newspaper on that sort of thing?

Melina LaMorticella:

Exactly.

Debby Merritt:

Now that we have a background on the types of clients that you help Melina, tell me about a typical day. What sorts of things would you be doing?

Melina LaMorticella:

A typical day is me receiving emails or calls from clients. And usually I'm working with HR managers. Sometimes it's in-house council, but most of the time it's HR managers and they'll have an employee abroad or they're considering hiring a candidate that needs visa sponsorship. And my initial role is to just, ideally, we are being contacted before there's even an offer of employment being made to the individual to confirm that the individual is going to be eligible for a visa, and if they are, are there any limitations or restrictions confirmed that the job that's being offered to the individual is going to qualify? Once we've assessed all of that and we give the client the green light, they come back to us once the offer of employment's been accepted. And then we go through a long process of me working with my staff here, gathering information and documents both from the employer and the employee.

Our office represents both the employer and the employee in the process. So we explain at the onset that this is dual representation, and we talk about how we cannot keep information confidential from any of the parties. So our communication is really with both the employer and the employee gathering information. And then we start preparing petitions, and it will depend on what exactly we're doing. Sometimes the first step is filing a form with Department of Labor to prove that the employer's going to pay at least the prevailing wage. In that case, we're assessing to make sure to determine what is the prevailing wage, is our employer going to be paying that? A lot of times we run into situations where the employer isn't paying prevailing wage, so we have to go back and forth on that. And-

Debby Merritt:

The point there I take it, is to make sure that employers don't bring in people from overseas, pay them substandard wages, which might both hurt those employees and also hurt the labor market generally.

Melina LaMorticella:

Exactly. Exactly. So whenever we are working on a visa petition that involves Department of Labor, it's always going to require some form of notice to US workers and some wage determination.

Debby Merritt:

Let me go back and ask you something about the conflict of interest and the confidentiality. Would an example of that be something like, here we have an employee that the employer is planning to hire, bring into the United States, and the employee says to you, I don't think this would affect my work at all, but I don't know if this will affect my immigration status, that I do have this conviction for a crime three years ago. And so now the employer though, you can't keep that secret from the employer.

Melina LaMorticella:

No. No. And that's actually, that comes up pretty regularly. And that's not the tricky, that's not so much a, the hard-

Debby Merritt:

Okay. What are the hard-

Melina LaMorticella:

... situation because, and that's going to impact the employee's ability to possibly to get a visa. So the employer has to be aware of it. It becomes harder when we're working on a green card, and at some point the employee, and this almost always happens, says, well, after I get my green card, how long do I have to work for this employer? And so that's a good point to remind them of our dual representation and how we can't keep information confidential. And then I just give them general advice. The flip side, of course, is we've brought someone in and then we are told by the employer that they're going to let that employee go, that it's not working out.

Debby Merritt:

Do you ever get to a point where the dual representation doesn't work and you have to withdraw?

Melina LaMorticella:

Yeah, or we have to get a waiver. So usually if our employer terminates an employee and that employee were to go work for another employer, we couldn't assist that employer number two with the petition process. Sometimes it's more of an amicable split and we're paid by the employer to help the employee transition into some other status, but that's usually where the conflicts come up.

Debby Merritt:

You mentioned earlier all of the detail work and the TDM, I think you used the word as part of this process. What are the fun parts of it for you?

Melina LaMorticella:

That's a good question.

Debby Merritt:

There are some, I hope.

Melina LaMorticella:

Yeah. There are. The fun parts are learning people's stories and learning how our community works and how our businesses work. And the nature of this work is we have a wide variety of clients that do all sorts of things. I recently did a petition for an employee whose background is manufacturing and working in an industry that manufactures automobile parts. And it was just, I never think about where the different parts of my car come from. And I learned that from this process, and it was really interesting. And it also shows in a very concrete way how global we are. And I know it sounds really corny, but I do believe that the United States is, I think we're one of the best countries to live in the world, and the fact that we have professionals from all over the world who want to come here is inspiring, and it gives me optimism. I have a colleague who says, listening to all the political rhetoric, his thoughts are, the day we have to worry is the day when no one wants to come here anymore.

Debby Merritt:

It must make you feel good to help both individuals and the companies that employ them. And really also the economy of the United States generally.

Melina LaMorticella:

Yeah. A lot of times when it works well, I do feel good. When we get bogged down by bureaucracy and negativity, it gets a little harder.

Debby Merritt:

Yeah. You're dealing with a mind boggling number of agencies. If there was anything you could change, either about your job or about the immigration system, what would it be? What are some of your top items?

Melina LaMorticella:

Oh, we have a wishlist. My top items would be almost getting doing away with my job. I think the numerical limit on H-1bs should be removed because the process is so cumbersome and expensive that no one is hiring me to obtain these petitions, these visas for employees, unless they absolutely have to. And frankly, it's a waste of money. So I would get rid of the cap on H-1bs. And the government needs to revamp how employment-based green cards are allocated. And because that's a ridiculous, cumbersome process. And then once you make it through the process, there's a limitation on how many green cards are available, and it's divided by country. So we have employees who will wait 20, 40 years before their green card becomes available, and that needs to be reformed.

Debby Merritt:

I didn't realize we still divided by country in terms of immigration.

Melina LaMorticella:

Yeah. Yeah. For employment and family. So people from populous countries are highly represented in the United States, India, China, the Philippines, Mexico, and they face an extreme backlog in visas, and Canada has a much easier system. We're going to start losing really talented people to other countries. And when you look at our country's greatest innovations, so many of them come from immigrants, and we really rely on that new energy and new talent to make us who we are. So it worries me.

Debby Merritt:

Yeah. One last question. You like many other lawyers do work in an area that has political implications. How do you balance that? One sense you're a professional just focused on helping clients obtain particular ends, but you also have particular knowledge about this area, that's a very political one. Do you feel that you have a special role in speaking out in the public policy debates, or do you try to keep quiet? How do you balance that?

Melina LaMorticella:

Mostly, I don't speak out. There are some members and some colleagues who are very vocal. I feel like the biggest service I can provide is just educating people. Most people have no idea how hard and difficult this process is. My role is just speaking out when there's someone who's actually interested and wants to learn more.

Debby Merritt:

Well, hopefully we've done some of that with this podcast. I was blown away by the $5,000 fee and the lottery, and then the fact that you might not get renewed and you get thrown out, and if you come from the wrong country, you have to wait 20 years to get a green card. It's pretty extraordinary.

Melina LaMorticella:

Yeah. Yeah, it is. It is. Absolutely.

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