Construction industry employers often face critical shortages of skilled and professional employees. Many wonder if they can hire foreign workers to fill their needs. The answer is maybe.

Employers who can anticipate workforce shortages in both hourly jobs-from foundation work to roofing-and in professional level jobs can use existing temporary guest worker programs if they meet applicable requirements and are not blocked by limits on the number of foreign workers who may be admitted under these programs. There are also special programs for temporary employment of college and graduate school students in part-time jobs and in co-op/work-study programs and for recent graduates. There is even a program specifically for Australian workers to come to the United States for temporary employment.

Because most of these programs require substantial lead time, employers who expect labor shortages should become familiar with practical and legal aspects of these program requirements and consider their options well in advance of needing workers. Advance planning and understanding what they are obligated to provide to guest workers are likely to be critical, particularly in achieving a successful, litigation-free experience.

The federally regulated foreign guest worker programs typically require employers to file "labor condition applications" to specify the number of openings they need to fill, the pay and other terms of the job, details concerning the duties, skill and experience requirements and the period for which workers are needed. The United States Department of Labor (DOL) will determine whether the proposed employment is for a "temporary period" and whether salary or wages and benefits meet applicable "prevailing" standards to avoid "adversely affecting" U.S. workers who are similarly employed.

This "prevailing" standards requirement does not necessarily mean that all employees who have similar duties must be paid the same rate. It does mean that there must be supportable reasons for differences in pay and other benefits. To guide and assist the governmental authorities in their evaluations of an employer's application, the employer or his/her counsel can provide wage/salary survey information and backup data to demonstrate the reasonableness of the employer's position on the applicable "prevailing rate." In setting proposed pay rates, employers should take into account job responsibilities, where the employee will be located, special skill requirements for job applicants and other factors that typically affect compensation. Be prepared to explain all of those factors to the DOL. Depending on the state where a prevailing rate request is made, it can take up to six weeks to obtain a determination.

The DOL, in consultation with the appropriate state workforce agency, will determine whether there are U.S. workers available to perform these jobs. The employer must be prepared to demonstrate that he has hired available U.S. workers and that he has not imposed hiring requirements on U.S. applicants not required of the foreign workers. Assuming that an employer's application is approved by the DOL, the employer will then file a petition for the issuance of guest worker visas for the approved number of workers through the Department of Homeland Security.

Guest worker applications are typically filled six months ahead of the needed date for professional employees and 120 days ahead of the needed date for hourly workers. There are statutory limits on the number of visas that will be awarded in any year, and you can expect processing delays. Applications for employment of temporary hourly workers should be filed by Friday, June 2, 2007, to have a reasonable chance of receiving approval on and after Monday, October 2, 2007. Employers who have met the earlier April 2, 2007, deadline for filing for the opportunity to hire professional level temporary foreign workers will be selected by lottery to receive the limited available visas. The lottery is necessary because employers filed applications for more than three times the number of available visas. Employers should expect similar levels of interest in hiring hourly workers.

The most likely available visa category to fill labor shortages of drywall installers, painters and other skilled laborers is known as the H-2B visa. For H-2B visa applications, the petitioning employer must show that the jobs to fill are "temporary" positions as defined under governmental guidelines. Workers can be admitted into the United States and authorized to work under an H-2B petition only for up to one year. (For example, on a special project that is scheduled to last no more than twelve months.) Nonetheless, in special circumstances, extensions for up to three years can be obtained. H-2B employees can also be obtained for jobs that require a workforce increase on a seasonal or other "peakload" basis. Employers that have a recurring seasonal need for larger workforces from, for example, April through November each year, and who cannot locate sufficient U.S. workers for their jobs, may be able to supplement their workforces every year. Employers in the landscaping, seafood, hospitality and agricultural sectors have done this for many years. In those cases, employers can file a single governmental application for as many workers as they will need to hire for a given temporary period, in a particular job and location. Employers may bring in H-2B workers who can move from project-to-project over the course of their stay so long as the employer can provide an itinerary of the locations and dates of work and so long as each job is temporary.