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Employment of Foreign Scientific Personnel in the Biotechnology Industry

January 1, 2008

The Necessity of Foreign Workers in the Biotechnology Industry

The dynamic growth of the U.S. biotechnology industry through the end of the last decade into the new millennium has brought with it the need for the most highly skilled scientific personnel. In an era when pursuit of cutting-edge R&D requires uniquely qualified scientific personnel, foreign workers have become an integral component in the continued expansion of the U.S. biotechnology industry. Along with the dynamic growth in the U.S. biotechnology industry has come the reality that in order to remain competitive, biotechnology companies must recruit scientific personnel on a global scale.

The Best and the Brightest from Abroad

The paradigm of personnel recruitment (and growth) within the biotechnology industry has been to acquire the best and brightest scientific personnel – regardless of nationality. Such recruitment has become a necessary component to the overall cost of doing business within the industry. The skills of foreign scientific personnel have done much to fuel the development within the industry.

Foreign scientific personnel may be directly recruited from outside the U.S. More frequently however, these persons are already in the United States . Such workers are generally already employed by other companies within the biotechnology industry or are completing graduate school or post-doctoral research programs.

Temporary Work Visas

U.S. immigration law imposes restrictions on the ability to employ and to be employed. Various visa classifications allow companies to temporarily employ foreign workers. Among the most highly utilized of temporary work visas is the H-1B (Specialty Worker) classification. Other visa classifications including the E-1 (Treaty Trader), E-2 (Treaty Investor), L-1 (Intracompany Transferee), and O-1 (Extraordinary Ability) classifications are also heavily used within the biotechnology industry for executive, managerial and highly skilled essential personnel. Several visa classifications have maximum periods of stay within the United States.

Availability of various visa classifications depends upon both the particular background of the employer as well as the qualifications and background of the sponsored worker. Foreign investment in U.S. entities and other corporate relationships to entities abroad frequently facilitate options for transfer of foreign personnel to the United States.

Permanent Residence Through Employment

U.S. immigration law permits foreign individuals to secure permanent residence (greencards) based upon work in a particular position and through sponsorship by employers. Depending upon the individual’s particular background, various options are available. Time frames to secure permanent residence vary, but can take several years depending upon the options pursued and the government agencies involved.

Sponsorship for permanent residence has become a necessary tool to recruit and retain many foreign scientific personnel who wish to remain in the U.S. long term. The “carrot” of sponsorship is often a key factor in determining whether a foreign scientist will accept or choose to retain her position.

Effects of Mergers and Acquisitions upon Immigration Requirements

Mergers, acquisitions, and other forms of corporate restructuring have become common place in the biotechnology industry. Since temporary work visas are “employer specific,” necessary steps must be taken in order to maintain the company’s ability to employ the foreign worker as well as maintain the worker’s legal U.S. immigration status.

The required actions to preserve employment eligibility and maintain legal immigration status depend upon several factors. These factors include the type of corporate restructuring, the timing of the restructuring, and the amount of time in which the worker has held a particular visa classification. Most importantly – the effect of the restructuring and related immigration matters upon foreign personnel must be addressed as part of standard M&A due diligence. Failure to do so could result in violation of federal immigration law, imposition of sanctions, and loss of ability to employ essential scientific personnel. This could translate into grave and dramatic effects upon the company’s R&D, especially when numerous foreign scientific personnel are affected.

Navigating the Immigration Maze

Immigration law is complex. Frequently, several government agencies are involved in the necessary steps of evaluating, adjudicating, and issuing temporary work visas as well as permanent residence. These agencies include the Departments of Justice, Labor, and State, as well as the individual state departments of labor with jurisdiction over specific work sites.

A complex nexus exists not only between government agencies with overlapping jurisdiction, but also between various related immigration processes with regard to both temporary work visas and permanent residence. Conflicting regulations that are not completely harmonized can create obstacles which must be bypassed in order to secure a temporary work visa or permanent residence.

Immigration in a Post-9/11 Environment

The tragic events of September 11th have had a vast impact upon several areas of law including immigration. In many ways, these events continue to have an ancillary effect upon companies which employ foreign personnel. The new “zero tolerance” for error policy as well as new security screening checks at both the INS and U.S. embassies abroad have resulted in delays in adjudication of visa petitions and issuance of visas. These delays have the potential to cause significant interruption to R&D and other company operations for both new and current foreign scientific personnel.

More than ever, careful coordination of an integrated immigration policy relating to employment of foreign scientific personnel is necessary in order to ensure the ability to utilize those “human assets” necessary to implement business strategy. In this environment, proper immigration planning is essential.