By Helene Dang
One of the biggest challenges facing companies hiring foreign workers in the United States is working within an outdated immigration system that does not fully complement modern business practices. As such, companies must adjust their recruitment strategies to give them the widest access to the global talent pool within the limitations of U.S. work visa options. Overcoming this challenge requires companies to engage with their immigration counsel early in the recruitment process, and ideally before an offer is made to a candidate to determine the most practical visa option, as well as to set realistic onboarding time frames for the business before making an offer. Think of your immigration counsel as your partner in the recruitment process.
And the time to start planning your recruitment program is now. Unless companies start thinking creatively and strategically about their approach, they may be passing up desirable candidates or opportunities for visa sponsorship. Team up with your immigration counsel to explore these other options and to help you shape a recruitment strategy that works for your business.
Work visa alternatives
Numerical limits on the familiar H-1B visa forces companies to think creatively and to consider less common visa types to accommodate their business needs. Looking for candidates internally within a corporate organization is one option. The L-1 intracompany work visa is available to candidates who have been in managerial or specialized knowledge positions for at least one year in the last three years abroad. Looking for candidates in specific countries is another option. The citizenship status of candidates may afford them a treaty-based work visa option, such as E-3 specialty occupation visas for Australians, H-1B1 specialty occupation visas for Chileans or Singaporeans, and TN NAFTA professional visas for Canadians and Mexicans.
Other nationality-based visa options to consider are the E-1 treaty trade or E-2 treaty investment visas where the candidate’s and the company’s nationalities are the same. There are currently over 80 nationalities, including France, Germany, Japan and the United Kingdom, that are eligible for E-1 or E-2 visas. The nationality of a U.S.-based company is determined by the nationality of the individuals who hold majority stock ownership, or by the nationality of the parent company (if there is one).For example, a U.S.-based subsidiary that is wholly owned by a French company may qualify to sponsor French managers, executives or essential personnel for E-1 or E-2 visas. In light of these visa options, companies may want to consider targeting their recruitment efforts in those countries for which there is an abundance of nationality-based work visa options.
When none of the above visa options apply, it is worth looking at the work situation for the candidate’s spouse. The spouse may qualify for a work visa, such as L-1, E-1 or E-2, which would afford your candidate the opportunity to apply for a work permit as a dependent once he or she is in the United States Also, consider an O-1 work visa for high-caliber candidates who have documented extraordinary skills in the sciences, arts, education or business. Or, does the U.S. company have an affiliation or partnership with a university? If so, this allows the company to avoid the annual 65,000 H-1B visa cap and lottery, and to sponsor a candidate for a cap-exempt H-1B visa anytime throughout the year.
Lastly, if a work visa for regular employment in the U.S. seems out of reach, then consider a “B-1 in lieu of H-1B” business visa for short-term work assignments. This business visa option requires that the candidate be customarily employed by a foreign company, paid a salary from a foreign source and be engaged in specialty occupation work while in the U.S. Short-term work assignments or projects in the U.S. should generally be limited to six months or less. One caveat with this particular visa is that not many U.S. consulates will recognize or issue it due to perceptions of misuse. Nonetheless, this still remains a viable option for many companies.
Strategies to increase the efficiency of visa applications for workers
Visa application can take days to weeks or even months for approval, depending on the visa type. The time it takes to get all required information and documentation from the company is also a major cause of delays. The best approach is to file a highly detailed, fully completed, fully documented application packet that leaves little room for a U.S. immigration or consular officer to request further evidence. Therefore, the best practice for petitioning companies is to engage with immigration counsel early in the process to understand what is needed.
Managers and other key players in the hiring process need to understand that the quality and timeliness of their input plays a key role in whether the visa application is approved, denied or delayed. It is important to take the time to formalize essential company information, such as detailed, technical job descriptions, specialized knowledge and project descriptions, because these elements often draw greater scrutiny. We can expect that the government will likely kick back applications containing non-specific or overly broad descriptions and request more details, thereby delaying the visa process. Furthermore, with the downturn in the oil and gas industry, we should prepare for more government scrutiny over work visa applications that, in better economic times, have not faced much oversight. The bottom line for companies engaging in the visa process is to be responsive to requests for information or documentation.
What support should you offer assignees’ families in applying for visas?
Moving one’s family to another country is sometimes more stressful than the job change itself. Companies can do their part to help alleviate that stress by providing support for the family’s transition, such as paying for the family’s visa application processes. Many companies will cover and handle the principal worker’s application, but then the family is left to handle their own individual applications and visa interview scheduling. The visa process involves an online application that can span more than 10 pages of questions, require uploading digital photos, paying visa fees and scheduling the visa appointment. All of this can be overwhelming, especially for a family of four or five. Offering to pay for legal assistance through this process takes the stress and load off your assignee and helps the assignee focus on the new job.
Dependent spouses in L-2, E-1 or E-2 status are eligible to apply for a work permit once they arrive in the U.S. This provides an extra benefit of additional income opportunities for the family. Companies may want to consider providing support for the work permit application process for the spouse as part of a relocation package.
Issues with furloughs and terminations
With the low price of oil and the downturn in the oil and gas industry, many companies are faced with the difficult decision of furloughing or terminating part of their workforce, including visa workers. Companies are often most interested in the options that keep the employer compliant with U.S. immigration laws, and that create the least impact to the employees and their families. Many employees on work visas have spouses who are working with dependent work permits and children that are in school. Consideration should also be given to the families because they will also be impacted by furloughs or terminations.
Certain visa statuses, such as H-1B, E-3 and H-1B1, are based on a Labor Condition Application (LCA) and do not allow for furloughs, otherwise referred to in the regulations as “benching.” Reduction of hours from full-time to part-time requires first amending the LCA and then filing an H-1B/E-3/H-1B1 amendment petition with the U.S. government. Accordingly, companies need to carefully consider the visa workers’ particular immigration status and ongoing employer compliance requirements before making any changes to the employment.
To ease the impact of terminations, companies may want to consider providing advance notice of 30 days or more to allow time for the employees to seek other jobs and to have their visa statuses transferred to new employers. Allowing employees to take unused vacation time before the separation also helps give them more time to look for other immigration options or even to wrap up their affairs before returning to their home countries. Current U.S. immigration laws do not provide any grace period after a termination for the employees to remain in the U.S. Therefore, advanced notice can be especially valuable in helping employees and their families take action on their immigration status and possibly avoid having to depart the U.S.
Companies also need to be aware that layoffs affect ongoing PERM labor certification cases, which is the first step of a three-step green card process. Any PERM application that is filed within six months of any layoffs in the occupation or in a related occupation at the worksite location will be audited. Companies must show that it notified and considered all potentially qualified laid-off U.S. workers. Even if the company itself is not going through layoffs, widespread layoffs across certain industries will trigger greater scrutiny by the U.S. government of work visa petitions and even permanent residence applications.