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US Immigration Law Issues For Foreign National Environmental Engineersby David Nachman, Esq.
Since the early 1980's the Environmental Engineering Industry has undergone an explosive expansion. Perhaps it was not an accident that the U.S. government's passage of complex environmental laws such as The Clean Water Act, The Clean Air Act and CERCLA were complemented, in the early 1990's, with dramatic changes to the U.S. Immigration and Nationality Laws. Those immigration laws made it much easier for foreign national environmental engineers to obtain nonimmigrant work visas and lawful permanent residence ("green cards") in the United States.
The O-1 nonimmigrant visa may present another option for certain foreign national environmental engineers. The O nonimmigrant is for foreign national environmental engineers with extraordinary abilities in science or business. If the intending foreign national environmental engineer has awards, original scholarly contributions, memberships in professional organizations, publications and/or presentations, then he/she may be eligible for an O-1 nonimmigrant visa. Given the high-level of education of foreign national environmental engineers, the O-1 continues to be a viable option for avoiding the H-1B cap. Different from nonimmigrant visas, immigrant visas are accorded to foreign national environmental engineers who have an intention to permanently live, work and reside in the U.S. There are generally two (2) ways to obtain lawful permanent residence: (1) through a position of employment (employment-based immigration); and /or (2) through a relationship to a family member who is either a green card holder or a U.S. citizen (family-based immigration). Lawful permanent residence may be obtained in other ways, including, but not limited to: (1) Asylum; (2) Diversity Lottery; and/or (3) Cancellation of Removal. IMMACT '90 legislation recognized to need to attract "top talent" to the U.S. Several pre-certified green card categories were introduced which accelerated the lawful permanent residence process. The first employment-based green card classification is for an Alien of Extraordinary Ability who is coming to the U.S. to serve in the national's interest. A foreign national environmental engineer need not necessarily seek sponsorship from a U.S. employer for this category since the individual can "self-petition." The second pre-certified classification is for Outstanding Researchers. There appear to be many inaccurate myths about the Outstanding Researcher category. First, an outstanding researcher need not necessarily possess a Ph.D. Additionally, the petitioning organization need not necessarily be an academic organization. One need only prove that three members on the staff of the organization are engaged in research or R&D. The organization has to be the petitioner for this immigrant classification. Another notable pre-certified classification option for the foreign national environmental engineer is the national interest waiver ("NIW"). Like the extraordinary ability green card classification, a foreign national environmental engineer need not seek sponsorship from a U.S. employer since an individual can "self-petition" for the NIW. The Mississippi Phosphate case clarified the vague stature and regulations in the early 1990s by stating that improving the natural resources in the U.S. was deemed to serve the national interest. However, the New York State Department of Transportation case made the NIW a more difficult green card option by requiring that the immediate need to obtain a green card for an environmental engineer in the U.S. outweighs the nation's interest in the labor certification process. The other option for processing the green card for foreign environmental engineers is through the labor certification process. The labor certification process requires a showing by the prospective employer that there are no able, willing and qualified U.S. workers who can take the job being offered to the foreign national environmental engineer on a full-time and permanent basis. The labor certification has traditionally been a time consuming process. Changes were made to the labor certification process by GAL 1-97 to attempt to speed the process through a procedure called "reduction in recruitment." Unfortunately, the Labor Department's good intentions were thwarted by an extension of the 245(i) program which clogged the arteries of a speedy labor certification process. Recently proposed regulations for a new labor certification process called "PERM" seems to offer a 21 day labor certification but eliminates the flexible legal standard of "business necessity". Many anti-immigration groups continue to submit that salaries of U.S. environmental engineers are substantially depressed by the willingness of foreign national environmental engineers to work for lower wages, or that U.S. engineers lose job opportunities to foreign engineers. However, this concept does not resonate with success since the proposition is not supported by the evidence. In fact, it appears that foreign national environmental engineers as a group represent less than 3.5 percent of the total U.S. engineering labor force, and as such, they do not displace Americans to any significant extent. Recently, there has been, and continues to be a marked increase in number of foreign environmental engineers and environmental engineering students. Foreign national environmental engineers face new challenges in the wake of 9/11. The Student and Exchange Visitor Information System ("SEVIS"), US-VISIT and the Technical Alert List ("TAL") are new databases and programs that may slow the immigration of foreign national engineers to the U.S. However, the demand for the important services that these individuals possess is likely to continue the steady influx of these talented engineers. Following the acquisition of advanced education and professional skills, many of these individuals are likely to remain in the United States and become an important component of the environmental engineering workforce. The addition, these highly educated and highly skilled workers will continue to create new opportunities in the environmental engineering arena. Foreign environmental engineers continue to provide a transfusion of new talent to support our nation's economic and cultural growth and development. Their presence has generally been accepted as the norm in the United States, and they continue to help our nation become the effective pluralistic society that it is today.
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