The challenges now facing U.S. employers and foreign workers has never been greater. The continued vibrancy of the U.S. economy coupled with the restrictive immigration policies of the Trump Administration have strained the ability of employers to meet their hiring needs as never before. The result is that more U.S. employers are forced to move operations abroad and more skilled workers sell their services to other countries.
But with a lot of planning and a little luck, it is still possible for U.S. employers to fill critical vacancies with foreign workers
The United States, like most countries in the world, limits employment to its citizens, permanent residents and a select group in designated categories. (See, asylum, TPS and DACA, and Adjustment of Status.) Those individuals who are not in one of these designated groups, must qualify for employment in one of the following categories:
Treaty Traders and Treaty Investors (E1, E2)
This visa is for Treaty Traders (E1) and Treaty Investors (E2). The visa requires that there be a treaty between the US and the applicant’s home country. In addition, the E1 requires that the applicant (or business entity) can establish that there has been a regular and sustained trade between the US and the home country. The E2 requires that the individual (or business entity) is investing substantial assets in an active business that will, at a minimum, do more than merely support the investor and family. The visa is available to key personnel of a treaty trader or treaty investor company.
Temporary Workers (H)
This visa is for nonimmigrant workers, subdivided into several distinct groups:
- H-1B are professional workers, requiring (1) at least a bachelor’s degree or its equivalent (2) a US employer/sponsor who has a job opportunity that requires a specialty (professional) worker and (3) the employer/sponsor’s demonstrated ability to pay the worker the “prevailing wage”. It is among the most useful, most sought after, and most controversial of all nonimmigrant visas. The law sets a numerical cap on the number of new H-1B visas that can be issued each year. Most years, the number of applications submitted on the earliest possible submission date usually exceeds the number of available visas for the entire fiscal year, creating a computer-generated lottery.
All H-1B visas for employees who do not currently have H-1B status, have been exhausted for fiscal year 2020. For the next fiscal year, to begin October 1, 2021, the earliest filing date is April 1, 2020. For April, 1, 2020, the USCIS will inaugurate a new lottery filing system in which the employers will submit an electronic registration and not a full application. Although this will reduce the workload and expense for applicants not selected, it is likely to greatly increase the number of applicants well beyond the 200,000 received in 2019.
- H-2 workers are seasonal or peak workers, usually brought in for agricultural purposes (H-2A) or to provide labor for recreational businesses including winter ski resorts, summer beach resorts and the like. (H-2B). Like the H-1B, the number of available visas for H-2s are numerically capped each year. Unlike the H-1B, the H2B process requires that employers undertake a highly regulated recruitment process to guarantee that the foreign worker is not taking a job away from a U.S. worker. This requires months of preparation before the actual filing. To sponsor a foreign worker for the summer season, usually beginning in April, we are generally unable to take in new clients after October of the previous year. Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 – March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – September 30). In 2019, Congress issued an additional 30,000 H2B visas for returning workers, but even this fell far short of the demand. We expect something similar to happen in 2020.
Exchange Visitors (J)
These visas are for individuals who have been accepted into a DHS pre-approved exchange program. There are a broad range of programs available, that can include anyone from an au pair providing child care services to a US trained foreign physician. All J programs must demonstrate they will provide cultural and other benefits to the US and the individual’s home country. Some require that the beneficiary must return home for two years after completion of the program.
Intracompany Transferee (L)
Arguably the most valuable of all business visas because it can lead to a green card without the necessity of a labor certification. The visa, however, is reserved for international companies. In its most classic form, the visa allows a parent company abroad to transfer one of its key people to a related company in the US. (Think BMW Germany transferring its Director of Marketing to BMW USA). These “key people” can be managers or executives (L1A) or it can be a person specialized knowledge (L1B). This visa requires initial approval from USCIS before the consulate can act. The status can then be the basis of a green card application as an international executive.
Extraordinary Ability (O)
This visa is for persons of national or international acclaim. The visa includes the most highly skilled performers, artists, scientists, business leaders and others of similar rank. This visa requires initial approval from USCIS before the consulate can act.
Artists, Athletes and Entertainers (P)
This is the “talent” visa for athletes that are participating in a team sport or for entertainers that are coming to provide performances as part of an ensemble. This visa requires initial approval from USCIS before the consulate can act.