Importing Skilled Workers
by,
Orlando Ortega-Medina, Esq.
(Originally published in Can-Am News, December 15, 2002)
The skilled labor shortage has passed from front-page news to a mundane fact of life in the construction industry. Some experts predict the shortage will last until at least 2010, while the rest see no end in sight. The causes of the shortage are complex and the long-term solution appears to be equally complex. Somehow, it seems, the American public is going to have to experience some kind of "sea change", and accept that being a skilled laborer is equal to, and as valid, as being a computer programmer or any other white-collar occupation. In any case, by the time a workable solution to this problem is found and implemented, most of the readers of this article will be walking with a cane. The good news is that a viable short-term solution is available.
Many contractors have inevitably discovered that there are foreign skilled workers floating around in the local labor pool. Unfortunately the large majority of these workers, while eminently qualified to fill the positions offered, cannot legally work in the United States. They simply do not have the proper status or documentation that allows them to take up their tools and get to work. Nevertheless, the need for skilled labor is so acute that contractors often risk the potentially severe consequences of hiring undocumented workers so as not to have to turn down lucrative contracts.
It happens all the time: A contractor is awarded a large contract, but finds he doesn't have enough workers to perform the job. He advertises the position, asks around the community, always with the same result - no workers available. Finally, as a last resort, he considers importing qualified skilled workers from outside the United States, but everyone tells him it is legally impossible to import such workers. So, as a matter of survival, he ends up violating the law by hiring undocumented workers and paying them either under the table or through phony, empty-shell subcontractor companies. Something is wrong with this picture.
What is wrong with the picture is the misperception that importing skilled workers is legally impossible. This misperception has been perpetuated over the years by the likes of the U.S. Department of Labor and even, more surprisingly, by over-cautious immigration lawyers. It is a misperception that has so worked its way into the very psyche of the construction industry and the legal community, that there have been calls on Capitol Hill for immigration reform and for new treaties between the U.S. and Mexico to address the labor shortage problem. In fact, before the tragedy of September 11th, 2001, President George Bush was in the midst of holding high-level meetings with Mexican President Vicente Fox on the subject. These talks have since come to a halt, like many other exigencies, in the interests of Homeland Security. But the problem is not an immigration problem, per se.
They've got the right idea, the President and members of Congress: there are indeed highly qualified and available skilled workers to the north and south of the United States. But the procedures to legally bring them into the workforce are already in place. There is no need to create new laws or regulations, or to single out one specific country for special treatment. Again, the procedures are already there!
Early in 2002, Can-Am Construction Jobs, Inc. (a Canada-based provider of skilled workers with offices in New Hampshire) and its legal team, had the privilege to rediscover and dust off these procedures, which had been forgotten due to lack of use. We took full advantage of the applicable case law and regulations and pressed the United States Department of Labor (DOL) and the U.S. Immigration and Naturalization Service (INS) to authorize hundreds of visas for temporary skilled workers in the construction industry. At first the DOL was reluctant to approve these cases. But when Can-Am demonstrated that the law gave it no other option but to approve these visas, a barrier of misperception was eliminated, and the visa approvals began to flow like water into a parched and withered land.
To take advantage of this special procedure, there are really only two basic requirements: a.) the contractor's need for workers must be temporary; and b.) there should be no workers available in the local labor pool. Proving that there are no available workers in the local labor pool involves advertising the position in a local newspaper of general circulation for three consecutive days. Given the current labor shortage, our experience has been that few, if any, qualified workers apply for the positions.
A difficulty we encountered was an extra-congressional, internal DOL policy that singles out the construction industry as having to get union clearance before the DOL will authorize any visa for temporary foreign workers. Can-Am Jobs together with ABC has made significant headway in changing this burdensome and discriminatory policy. We have already reached a preliminary understanding with DOL officials in Washington D.C. Finally the DOL is beginning to understand the impact and economic benefit of helping the construction industry in its time of need, by allowing the temporary importation of skilled workers without jeopardizing permanent job opportunities for Americans.
There are currently 66,000 visas available every year for temporary foreign workers. On average, only 40,000 visas in all industries combined are actually utilized in any one fiscal year. This is in marked contrast to the better-known H-1B visa, which is utilized to import professional labor. The H-1B visa was originally capped out at 40,000 visas per year, and each year there were more visa applications than available visas. At the insistence of the High Tech and IT lobby, congress raised the cap in excess of 200,000 visas per year. Therefore, there is no problem if the visa demand in the construction industry exceeds the supply of available visas - congress can always raise the cap as it has done before.
Finally, Contractors who decide to solve their short-term labor needs by importing labor from abroad will not only benefit themselves, but will benefit the labor market on the whole. They will not need to continually run afoul of the law by hiring undocumented workers. Instead, they can bring these same workers into the system (regardless of whether they come from Mexico or Canada or Europe), use their valuable services for several months each year, and then let them go home for a few months until the next labor cycle. At the same time, these same contractors will have effectively solved their short-term labor problems and will no longer have to turn down or lose valuable contracts due to lack of workers, or pay large fines for failing to complete their jobs on time. In the meantime, the United States construction industry will have time to implement the new educational programs that will attract the next generation of much needed skilled workers.
