To Hire Talent From Abroad, You Might Need To Apply For Visas, Here’s How It Works To Hire Talent From Abroad, You Might Need To Apply For Visas, Here’s How It Works
13      To Hire Talent From Abroad, You Might Need To Apply For Visas, Here’s How It Works

One way to solve the talent acquisition problem in Utah is to hire skilled workers from abroad. But doing so may mean navigating the complex world of visas. Here are five possibilities for employing overseas talent.

As the tech sector rapidly expands in Utah, business leaders must attract and retain top talent to allow their businesses to grow and maintain their competitive advantage. And yet, finding US workers with relevant degrees in the fields of science, technology, engineering, and mathematics (otherwise known as STEM) is challenging. One way to solve this problem is to hire highly skilled foreign nationals who have the degrees and experience necessary to fill technical and essential positions within the organization. To do so, companies must sponsor foreign nationals for various temporary nonimmigrant business visas. Here are some alternatives.

Finding STEM Degree Professionals: F-1 OPT and STEM OPT Extensions

Foreign nationals engaged in full-time studies in the United States often hold F-1 student visa status. After graduation, F-1 students can obtain Optional Practical Training (“OPT”) to engage in training related to their studies for a total of 12 months per degree program. The F-1 student will need an employment authorization document (“EAD”) from United States Citizenship and Immigration Services (“USCIS”) to be work authorized under OPT.  

When hiring an F-1 student with a STEM degree, companies should consider whether to register  (if not already registered) with E-Verify. If the company is registered with E-Verify, and if the F-1 student has earned a STEM degree from a US school and can satisfy other specific requirements, the student may be eligible to apply for an additional 24 months of OPT, for a total of 36 months of work authorization. Although STEM degree earners may be eligible to work in the United States for up to 36 months on OPT, their continued work authorization is not guaranteed after this period. While they may possess the educational and professional qualifications for an H-1B temporary work visa, there are limited H-1B slots available and there is no guarantee that any particular person will be selected.

Employers Applying For H-1B Specialty Occupation

The H-1B classification is available to professionals working in a “specialty occupation,” which is defined as a position for which the minimum entry-level requirement is a bachelor’s degree or equivalent. If the foreign national has not previously held H-1B status, they are subject to the annual statutory quota (known as the annual “H-1B Cap”) which allows for a total of no more than 85,000 H-1B visas to be awarded each fiscal year. There are 65,000 visas allocated for those who have a bachelor’s degree or US equivalent and an additional 20,000 visas for individuals who have obtained a US advanced degree (US master’s or higher). An employer files the H-1B petition during the first week in April which is six months prior to the start of the fiscal year on October 1st. USCIS then randomly selects the petitions that will be awarded a visa number under the H-1B Cap.  

The number of cap-subject H-1B petitions filed each year is normally significantly higher than the total 85,000 fiscal allotment. For example, for the 2019 fiscal year starting on October 1, 2018, USCIS received a total of 190,098 petitions for the 85,000 available slots. Because of this, employers need to look at other visa options to ensure that key foreign national employees hired in F-1 OPT status will not have gaps in their work authorization. Additionally, even if a foreign national receives an H-1B Cap number, approval is not guaranteed. USCIS may issue a Request for Evidence (“RFE”) and the petition can ultimately be denied. Over the last two years the number of RFEs and denials issued by USCIS on H-1Bs has significantly increased, even for extensions of stay for existing H-1B workers, in part because  USCIS rescinded its longstanding policy of deference to earlier adjudications.

Those lucky enough to be approved in the H-1B Cap are often recruited by other employers as they are no longer subject to the annual cap and can begin working for a new sponsoring employer once the petition is received by the USCIS. This is known as H-1B portability. Moreover, because the marketplace is so competitive for STEM talent, it is common in hiring negotiations for foreign nationals to ask the company to commit to beginning the permanent residence (or “green card”) process immediately. This is particularly important to individuals born in certain countries, such as India and China, as they can be stuck in the process for a considerable time, possibly 10 or more years, due to country-based caps.  The green card process is also important because once foreign nationals holding H-1B status reach certain milestones, their spouse holding H-4 visa status can apply for employment authorization, although this is not likely to be a long-term option of employment for the foreign national dependent spouse, as the US government intends to rescind the regulation allowing H-4 spouses to work.

Other Visa Categories: Treaty Visas

Other possible visa options may include those established through treaties, for which eligibility requirements are based on a foreign national’s country of citizenship. These options include the TN, E-1/E-2, E-3, and H-1B1 visas. These visas should be considered when the H-1B Cap has been reached.

The TN visa category, for Canadian and Mexican professionals, was created under the North American Free Trade Agreement (NAFTA) and is valid for a three-year period and can be renewed indefinitely. Visa applicants must be employed in specific occupations listed in the TN Schedule. Commonly used occupations in the tech industry are computer systems analyst and engineer.

The E-1 (Treaty Trader) and E-2 (Investor) visas are often used by start-up companies that are foreign-owned. These visas are designated for business owners and employees who will oversee or work in an enterprise that is engaged in trade between the United States and a foreign country, or that represents a major investment in the United States. The eligibility requirements for these visas are clearly delineated on USCIS’s website.

The E-3 visa classification is for Australian professionals. Like an H-1B, the job offered must be in a specialty occupation. It is valid for two-year periods of stay and can be renewed indefinitely. Spouses are eligible for employment and can apply for an employment authorization document (EAD).

The H-1B1 visa is for Chilean and Singaporean professionals and is valid for an initial one-year period but can be renewed in one-year increments. 6,800 visas are allocated per year from the annual H-1B Cap. The offered job must be in a specialty occupation.

Employers With A Foreign Office:  L-1 Intracompany Transferee

If a company has a foreign office, another option could be to send an employee to work abroad and subsequently return to the United States on an L-1 visa. The L-1 category allows the transfer of employees from overseas to a related company in the US. There are two types of L-1 visas: L-1A (executives and managers) and L-1B (specialized knowledge workers). To be eligible, there must be a qualifying relationship between the US sponsor company and the foreign company, such as parent, subsidiary, or joint venture. The foreign national must also have at least one year of overseas employment with the qualifying foreign company within three years of transferring to the United States. The maximum period of stay for L-1A employees is seven years and five years for L-1B employees. Spouses of L-1 employees are eligible to apply for work authorization. The USCIS closely scrutinizes L-1 visa petitions with high RFE rates.

Another Possibility for Employers: O-1 Extraordinary Ability

Another option that does not require employment abroad, or have a numeric or a specific country of citizenship limitation, is the O-1 extraordinary ability visa. The O-1 visa is available to foreign nationals who possess extraordinary ability in the sciences, education, arts, business, and athletics. For tech companies, foreign nationals usually apply within the fields of science and business, and must show that they are among a small percentage who have risen to the top of their field. This is established by satisfying least three of eight categories. Although this visa appears intimidating to employers and foreign nationals, it can be a viable option for those employees who are established in their field.  Nonetheless, seasoned immigration professionals are well aware that there are high RFE rates for this classification. Thus, it is critical to ensure that the documentation submitted in support of an O-1 petition is sufficiently detailed.

The current administration is presently focused on compliance with—and increased enforcement of—US immigration law. Coordinated agency enforcement directives issued in 2017 show an increased collaboration among several Executive Departments. It is in this climate that US employers can expect increased work site inspections, including I-9 audits by US Immigration and Customs Enforcement and visits by the USCIS Fraud Detection and National Security directorate. With complex rules and visa options, time sensitivity and increased enforcement, it is critical that businesses partner with a law firm that has extensive immigration knowledge, technology, and data to proactively address issues, thereby ensuring that businesses are compliant and do not lose valuable time to missteps that can have significant consequences.   

Joseph Paldino is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP. Robert Garafola is an Associate at Joshua Beckham, Law Clerk.

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