Employers across the country are finding it difficult to meet their labor needs for a variety of reasons. Workers may be reluctant to return to the office after pandemic-related closures, or may have moved to other fields or jobs, prompting employers to explore creative ways to meet their hiring needs. Although immigration laws do not make things easy for employers, seeking a foreign workforce may be an option to ensure that business operations can continue. Here are eight options that may be available if you’re looking at the talent pool of foreign nationals.
Look for a second chance in the current year H-1B lottery
A limited number of H-1B visas are available each year to foreign nationals in special occupations who meet certain requirements, and the US Citizenship and Immigration Services (USCIS) receives more H-1B registrations than it can approve . But registrants who weren’t selected in the FY23 cap lottery in March may get a second chance to file an H-1B this year. In the past two years, USICS has held a second lottery to fill in the remaining H-1B visas for the annual allocation of 85,000. Peak H-1B registrations for which an H-1B petition is not filed by the deadline will be reallocated among waiting list registrations. While USICS accepted a larger number of cap registrations than in previous years, leading to some uncertainty as to whether there will still be visas to fill, it is possible that an H-1B registration not selected in the initial March lottery could still be selected more. forward in the year.
No action is required by an existing H-1B cap registrant to be considered for the “second chance” lottery. This will happen automatically if it happens at all. If a second lottery selection does not occur, employees should consider placing the individual at the opening of next year’s lottery registration in March 2023.
Transfer a valid H-1B
Each person with H-1B status is eligible for at least six years of H-1B time, which includes only time spent in the US. This six-year period can be used at one or multiple employers. Therefore, if someone is in the US and working in H-1B status, another employer can apply to employ that person in H-1B status for the remaining time up to a maximum of six years. A great benefit of this H-1B “portability” is that the individual can start working as soon as the H-1B change of employer petition has been filed with USCIS. An approval is not required, which can save a lot of time and money.
Please note that some organizations are exempt from the H-1B limit
Most businesses are subject to the annual H-1B cap lottery for individuals who have not been previously approved for H-1B status. However, some businesses have special status as H-1B cap-exempt employers, allowing them to apply for a year-round H-1B outside of the cap lottery. This cap exemption applies to organizations that are:
higher education institutions; Non-profit entities related to or affiliated with an institution of higher education; and Governmental or non-profit research organizations.
These organizations are not subject to the annual lottery, and capped employers may benefit if they can hire someone who works for the organization at the same time. That is, if a foreign national is employed in H-1B status with a cap-exempt employer, even part-time, he may be eligible to work concurrently for an H-1B employer subject to the cap. However, the foreign national must maintain employment with the cap-exempt employer at all times while working for the capped employer.
Explore options to earn a higher degree
Certain student-based visas allow for temporary employment related to the beneficiary’s studies. Foreign nationals who were not selected in the H-1B lottery and who are nearing the end of their F-1 optional practical training (OPT) or two-year STEM OPT extension may consider returning to school for another program of study.
Enrolling in a higher degree of study will allow the student to remain in the US and potentially receive a curricular practical training (CPT) work authorization. CPT allows students to work for credit, so some students may continue to work after the expiration of their OPT if they are enrolled in a new program of study and have been granted CPT authorization by the school. There are potential issues that could limit the future ability to obtain an OPT authorization in the future or may require the student to leave the US before obtaining H-1B status, so this option should be carefully reviewed with the school and the legal adviser.
Review Available Visas for Citizens of Certain Countries
Depending on which country you are targeting, there may be other visa options available.
E-3 for citizens of Australia
E-3 visas are available only to citizens of Australia. The requirements are like an H-1B, although there is no limit for this visa category. Therefore, if an employer seeks to hire an Australian citizen in a position that requires a bachelor’s degree or higher in a specialized field (identical to H-1B), she may be able to obtain E-3 status for the foreign national. either through USCIS if they are in the US or at a US consulate if they are in Australia. E-3 approvals are issued in 2-year increments and may be requested at any time and renewed as needed. Spouses of E-2 visa holders can also work, making this a great option with hiring incentives.
H-1B1 for nationals of Singapore and Chile
Citizens of Singapore or Chile may be eligible for the H-1B1 visa, which is very similar to the H-1B visa in terms of requirements. These visas are not subject to the same limit as an H-1B visa and can be applied for through USCIS if in the US or at a US consulate if in Singapore or Chile.
TN visas for Canadian and Mexican professional workers
Citizens of Canada and Mexico, in certain occupations, may qualify for the TN visa classification. The TN visa is not subject to a cap.
Hire dependents of employment-based visa holders
Most visas do not grant work authorization to dependents. However, there are some that allow spouses of visa holders to work in whatever capacity they choose while in the US with their visa-holding spouse.
E/L Dependent Status
Immigration regulations allow E and L visa/status spouses to work while in the US with their spouse working for a US company. The USCIS interpretation of the regulations was quite limited, as it required these spouses to apply for employment authorization after being in the US in dependent status (such as E3 or L2). These EAD cards, however, currently take a year or more to issue, substantially minimizing this benefit. However, earlier this year, USCIS corrected its overly strict reading of the immigration regulations and clarified that spouses E and L are eligible to work in the US solely based on their status. This was a major victory for these spouses, as they were able to work when admitted to the US in L2 status as a spouse, receiving an entry designation of E2S, E3S, or L2S. This status alone allows these individuals to work in the US for any employer and in any capacity if their spouse maintains their primary E or L status.
Dependent status H-4
If a foreign national is married to an H-1B visa holder who has an approved I-140 petition but is unable to file their Adjustment of Status Application due to country limits, then the foreign national, if an H-4 dependent state, you are eligible for an EAD card.
Explore Eligibility for O-1 Extraordinary Ability Visas
O-1 visas are available to individuals who have extraordinary or unique ability in the sciences, arts, education, business, or athletics. These are available to people who are at the top of their field and have extensive documentation to substantiate that claim. O-1s are approved in 2-year increments and can be renewed as needed.
Please note that certain visas are available to current employees of global companies
The L-1A and L-1B visas allow multinational companies to transfer certain employees (executives and managers or employees with specialized knowledge) from their offices abroad to their offices in the United States.
Foreign nationals must have worked abroad as an executive or manager of the foreign company for at least one consecutive year within the last three years immediately preceding admission to the United States to be eligible to become an intracompany transferee L-1. As such, foreign nationals currently in the US will generally not qualify for an L-1 visa. However, this is a great tool for bringing foreign nationals employed in multinational companies to the US. They not only meet the hiring needs, but also have insider knowledge of the company and experience that benefits the American company.
Fisher Phillips is ready to help you as you explore your options for hiring foreign nationals. If you have questions, contact your Fisher Phillips attorney, the authors of this Report, or any attorney in our Immigration Practice Group. We will continue to monitor future developments and provide updates, so be sure to subscribe to the Fisher Phillips Insight system for the latest information.
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