Immigration Challenges & Solutions: Leveraging International Talent in a Tight Labor Market

Corporate immigration and a cross-border workforce are one of the many considerations for in-house counsel today. Increasingly, companies are turning to international workers and this creates both business opportunities and compliance risks for employers. As part of Womble Bond Dickinson’s The Evolving Dance thought leadership series, a panel of immigration attorneys discussed issues surrounding employing global workers in a competitive talent market. This article is taken from that conversation. The speakers were:

• Jennifer Cory, Partner, Womble Bond Dickinson;
• Ali Raffety, Associate Corporate Counsel, Mercedes-Benz Vans, LLC; and
• Susan Ramos, Former Senior Counsel, Womble Bond Dickinson.

The U.S. job market has been tight for months, with unemployment near record low levels and companies creating more jobs to fill. These demands include all types of careers and span a wide range of industry sectors. The need for workers includes short-term, long-term and permanent help.

Many companies are looking to foreign workers to meet this demand and fill key vacancies. Obviously, immigration is a legal process so the employer’s in-house counsel must be front and center of this decision-making process. Like all business executives, the in-house counsel is charged with finding solutions that meet their company’s needs. But corporate attorneys also have the burden of identifying and mitigating risks of implementing these solutions.

“There’s an inclination to act now and worry about things later,” Cory said. But balancing compliance issues with immediate workplace needs is vital, and companies that fail to address the compliance side may be faced with even bigger problems than job vacancies.

Business Visitor Visa Waivers and B-1 Visas

The U.S. has programs in place to help companies bring foreign workers over for short-term visits. But can companies just bring over workers from foreign subsidiaries and have them do work on a business visitor visa (either on a visa waiver or a B-1 visa)? Ramos said in general, the answer is “No.”

“They should really determine what these employees are going to be doing, and if it is work, that’s something they can’t be doing as visitors,” she said. A business visitor may attend meetings or seminars, negotiate contracts, observe U.S. operations, and collect data, but they can’t engage in productive work. Ramos said a good rule of thumb is that if the employer would have hired someone to do the work in question, then a work visa is needed to do that work.

One exception is that business visitors may install, service, repair or train others on equipment and machinery manufactured outside of U.S. and purchased from foreign company if the contract of sale requires the seller to provide these services and/or training.

Cory said these approaches can be helpful for short-term, limited capacity business activities. “It’s one thing to keep in your quiver as an in-house counsel,” she said.

F-1 Student Visas

Another possibility is recruiting F-1 students to support the business.

Some international students are eligible to work as part of their course of study. This is done through their university and is classified as “curricular practical training” or “optional practical training.” This training must be related to the student’s degree area. Students may work for 12 months and STEM (science, technology, engineering and math) degrees offer options to work an additional 24 months.

Raffety said the F-1 program requires employers and managers to understand that these students only will be available for a limited period, unless the student can obtain a different type of visa. She noted that businesses have been encountering backlog-related delays in obtaining some visas, so employers need to allow ample time for processing.

In addition, U.S. companies may be able to leverage a range of temporary worker visa categories (listed below). These categories generally are employer, job and location-specific, meaning they aren’t transferrable to a different employer, role or location without the U.S. government’s permission. They also are of a finite duration, meaning there is a limit to how long the employee can stay in the U.S. If the employer will need the worker to stay long-term, they probably should pursue other visa options.

“When the U.S. Department of Labor is involved, there are no expedites,” Cory said. But USCIS does offer “premium processing” that can shorten the time it takes to obtain documentation. 

E-1/E-2 Visas

E-1 and E-2 visas are options if a company is partially owned by a foreign interest.

“E-category visas are based on agreements the U.S. has with other countries,” Ramos said. An E-1 visa is for foreign citizens who are engaging in trade activities, while E-2 is for foreign investors. This visa requires that the company apply with a U.S. consulate abroad and specific requirements vary from country to country. 

Ramos said that E-category visas apply to “Executives, Managers or employees with essential skills.” “Essential skills” doesn’t necessarily require a degree. It just means that their talents would help the U.S. business be successful. Spouses of E-visas holders also are eligible to work and don’t have to apply for an employment authorization document.

H-1B & H-2B Temporary Worker Visas

An H-1B Temporary Worker visa is often the next step for an F-1 student—“or it would be if there weren’t such a small number of visas available,” Ramos said.

H-1Bs are available for “specialty occupations” typically requiring a bachelor’s degree or higher, or its equivalent. The employer must pay the employee a required wage, based on the location and job level. These visas are distributed by U.S. Citizenship and Immigration Services via lottery due to their demand. H-1B employees may move from one employer to another without going through the registration process again, Ramos said.

Some H-1B employers are exempt from the cap and may work concurrently with cap-subject employers.

H-2B Temporary Non-Agricultural worker visas may be obtained when there are not enough U.S. workers willing, able and qualified to do temporary work. Employing H-2B workers cannot adversely impact wages and working conditions of U.S. workers—employers must meet a wage threshold determined by the Department of Labor. 

The need for these services must be temporary, and in general, the Department of Labor will not approve a temporary need for longer than nine months. Only 66,000 of these visas are available annually (33,000 during each half of the government’s fiscal year).

“The H-2B visa is used to help employers manage peak loads—seasonal needs, intermittent needs, that sort of thing. It’s not meant to be a permanent option,” Ramos said. The three-part process is as follows:

1. The employer must get a temporary certification from the Department of Labor verifying that there are no U.S. workers for the job. 
2. A petition must be filed with USCIS for the job.
3. The worker must apply for a visa at a U.S. consulate in their home country.

It generally takes a full year of planning and filing paperwork to bring in H-2B talent.

J-1 Visas

The J-1 Intern or Trainee visa program is open to exchange visitors in a variety of employment disciplines and may give companies options for temporary support. 

“The J-1 can be a great alternative to the H-1B when that is not an option, depending on the position offered,” Ramos said.

J-1 visa holders may be interns who enrolled in foreign post-secondary academic institutions or who have graduated within the past 12 months. Such interns are allowed to work in the U.S. for a full year.

There also is a J-1 visa for trainees, who have a degree/certification from a foreign academic institution plus one year of prior experience. Alternatively, J-1 trainees may have five years of work experience in the field outside the U.S. Trainees may work in the U.S. for 18 months.

The J-1 Summer Work-Travel program offers seasonal or temporary work for college students on a four-month visa. 

The J-1 Specialist program allows workers with special knowledge or skills to come to the U.S. to demonstrate, observe and consult for 12 months.

“One of the great things about the J-1 program is that we can bring in outstanding students from all over the world to work as interns here at Mercedes-Benz in Charleston,” Raffety said.

Cory said that cross-border chambers of commerce have J-1 programs already set up, which can be good resources for companies.

L-1 Intracompany Transfer Visa

In an era in which companies increasingly are global, it only makes sense that multinational companies should be able to look within their own ranks for international talent. The L-1 Intracompany Transfer Visa is open to executives and managers (L-1A) as well as professionals with specialized knowledge (L-1B) with at least one recent year of full-time experience (within the past three years) outside the U.S.

Blanket L-1 visa seekers must present an application package and interview with the U.S. consulate in their home country. If the U.S. activity does not require at least a four-year bachelor’s degree or the visa applicant does not possess one, or if the applicant is an individual L-1 visa applicant as opposed to a blanket applicant, the employer must obtain approval from USCIS.

In most cases, L-1 visas may be issued granted for an initial term of three years and may be renewed for two additional years (L-1B) or four additional years in two-year increments (L-1A), Ramos said.

“The first thing for us is to see where the candidates are coming from and if they qualified for either L-1A or L-1B visas. It’s been really helpful in getting talent from our overseas entities,” Raffety said.

TN USMCA

The former NAFTA agreement provides opportunities for Canadian and Mexican workers to come to the U.S. for designated positions for up to three years at a time. The best news? Bringing in workers through the TN program often is faster and less expensive than other options. 

“This can be a tool not only for bringing in professionals, but also bringing in people who don’t have a bachelor’s degree,” Cory said. Canadian citizens are visa exempt, meaning they can avoid a trip to the U.S. consulate and apply directly at a port-of-entry for same-day adjudication. 

Ramos said employers need to look carefully at the USMCA appendix to determine whether a foreign national worker has the credentials to quality for this program.

Risk Considerations in Immigration

In-house counsel should be aware—and make their company’s leaders and managers aware—of the significant penalties for non-compliance with U.S. immigration law. Such risks include:

• The expedited removal or deportation of the employee;
• A permanent bar of the employee from the U.S.
• Estimated fines ranging from $375-$14,050 per violation;
• Criminal liability for executives and managers;
• An inability to conduct business in the state; and
• Damage to the company’s public image.

Best Practices in Corporate Immigration

The first thing an in-house counsel should do, Raffety said, is to create a procedure to identify and control who is allowed to perform work for the company.

“One of the parameters we’ve put in place at our company is the business visitor questionnaire. This is required of every business partner who is hosting a visitor,” she said. 

The business and visitor complete the form and the legal department determines if the planned activities fall under the scope of what is allowable business visitor activity. She said the process has worked extremely well and helps the company prevent compliance violations. Raffety said these questionnaires give her office the information they need to determine the appropriate visa approach for the employee.

It also is important that in-house counsel establish clear expectations on how complex the corporate immigration process can be. Visa processing times can take many months, and some visas require significant documentation. 

In-house counsel need to make company leaders aware that such visas may take months to process. Cory noted that for European Union candidates, they will need to comply with GDPR privacy requirements as well posing an additional challenge to obtaining evidence to support visa applications.

She also noted that the visa application process is subjective, and the same efforts for similar candidates may result in different results.

The panelists agreed that international talent can greatly benefit a business and companies should explore these options—particularly when the domestic labor market is so tight. By creating processes and policies, and communicating clear expectations, in-house counsel can help their employers avoid compliance issues and leverage international talent for the company’s benefit. 

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