Understanding Immigration, Part III

Employment-Based Immigration

By Rehan Alimohammad and Matthew Myers

United States companies often struggle to fill vacant positions across many industries and occupations, including but not limited to construction, hospitality, healthcare, and education.1 Thus, business immigration offers an opportunity to fill vacancies, which—despite popular belief and according to economic analysis—has the effect of boosting native employment ratios and wages, alongside alleviating domestic workforce shortfalls.2 Business immigration strategies are favorable to degreed professionals, but additional costeffective options may exist, depending upon the type of employer and nature of the job.

Given shortages across industries, turnover has also become a significant problem. Generally speaking, a noncitizen sponsored for employment by a United States company can only work in that position for the sponsoring company, unless another company is willing to go through the sponsorship process, so turnover rates may be generally lower for sponsored employees.

This article focuses on common work visa options and the corresponding Employer Compliance required to employ both United States citizens and noncitizens.

H-1B Specialty Occupation Visa

The H-1B Specialty Occupation visa is a temporary nonimmigrant visa for degreed professionals and international graduates to work in the United States. This visa category requires a job offer in a position which commonly requires a Bachelor’s degree or higher in a specific field, which is possessed by the prospective noncitizen employee.

A significant problem with this visa category for many private employers is that there is an annual Electronic Registration Process (or lottery) to be able to file H-1B petitions for new H-1B beneficiaries. There are also “caps” or limitations on the numbers of new H-1B visas available annually: 65,000 visas for Bachelor’s degree positions, plus an additional 20,000 visas allocated to beneficiaries possessing a United States Master’s degree. Registrations may be submitted in the first few weeks of March, and lottery selections are announced at the end of March, allowing for H-1B petitions to be filed with United States Citizenship and Immigration Services (USCIS) from April 1–June 30, for an October 1 start date of H-1B status at the earliest. Subsequent lotteries may be conducted if an insufficient number of petitions are filed and approved.3

Certain universities, research institutions, and other organizations are “cap-exempt,” which means that their employees can readily obtain H-1B visas for qualifying candidates. “Lottery-exempt” petitioners include:

• Institutions of Higher Education (universities)

• Nonprofit Organizations or Entities related to, or affiliated with, an Institution of Higher Education

• Governmental Research Organizations

• Nonprofit Research Organizations

If approved, the H-1B status allows noncitizen employees to work in the United States for an initial period of three years. Thereafter, the visa can be extended for an additional three-year period (a combined total of six years), with the extension not being subject to the H-1B lottery. Extensions beyond six years are possible, depending on how far the candidate has proceeded in the residency (green card) process. Spouses and unmarried children (under the age of twentyone) of H-1B employees are eligible to travel and stay in the United States as dependents. H-1B visa holders who have already been “counted against the cap,” having applied under the H-1B visa lottery within the past six years, also do not need to apply again under the lottery unless and until they use their six years of status. These employees can switch to another employer if the new employer files an H-1B petition, which would also be exempt from the lottery.

L-1 Intracompany Transfers

The L-1 visa is a nonimmigrant or temporary intracompany transfer visa available to persons coming to work in the United States for an employer related to a foreign company, which the applicant worked for before entering the United States. The L-1 visa is for applicants who have been employed abroad for one out of the last three years for a parent, affiliate, or subsidiary of a United States employer. Any time spent working in the United States, while on a different visa, will not count toward the one year of required employment, though time spent in the United States will not be considered to have disrupted the time of employment abroad.4

The L-1A nonimmigrant classification enables a United States employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. The L-1B non-immigrant classification enables a United States employer to transfer a professional employee with specialized company knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States.

The EB-1C category is almost identical to the L-1A visa with a few differences. The EB-1C is an immigrant visa and is a step toward lawful permanent residence. Also, the EB-1C cannot be used for a new office where the United States entity has been established for less than a year.

An EB-1C beneficiary must also have served as a manager or executive abroad and will be employed in the United States as a manager or executive, whereas L-1A does not require that the beneficiary served as a manager or executive abroad, only in the United States.5

A challenge with this visa is that many of the terms and regulations that are used are very broad, which allows the individual immigration officer reviewing the case to have great discretion over whether a case is approved or denied.

The spouse and unmarried children (under the age of twenty-one) of the workers under the L-1A and the EB-1C categories are eligible to file for residency alongside them.

Trade NAFTA (TN) Visa for Canadian and Mexican Professionals

Due to Texas’s proximity to Mexico, a popular option for employers in Texas is to utilize visas available under the North American Free Trade Agreement (NAFTA), which was updated as the United States Mexico Canada Agreement (USMCA). This visa provides a set list of occupations which can be performed by qualified Canadian and Mexican professionals in the United States, following approval of an application for a Trade NAFTA (TN) nonimmigrant visa classification.6

The Qualifying Occupations include:

• General Occupations:  Accountant, Architect, Computer Systems Analyst, Disaster Relief Insurance Claims Adjuster, Economist, Engineer, Forester, Graphic Designer, Hotel Manager, Industrial Designer, Interior Designer, Land Surveyor, Landscape Architect, Lawyer, Librarian, Management Consultant, Mathematician, Statistician, Range Manager, Range Conversationalist, Post-Secondary Institutional Research Assistant, Scientific Technician, Scientific Technologist, Social Worker, Sylviculturist, Forestry Specialist, Technical Publications Writer, Urban Planner, Geographer, and Vocational Counsellor.

• Medical/Allied Professionals:  Dentist, Dietitian, Medical Laboratory Technologist, Medical Technologist, Nutritionist, Occupational Therapist, Pharmacist, Teaching Physician, Research Physician, Physiotherapist, Physical Therapist, Psychologist, Recreational Therapist, Registered Nurse, and Veterinarian.

• Scientists:  Agriculturist, Agronomist, Animal Breeder, Animal Scientist, Apiculturist, Astronomer, Biochemist, Biologist, Chemist, Dairy Scientist, Entomologist, Epidemiologist, Geneticist, Geologist, Geochemist, Geophysicist, Oceanographer, Horticulturist, Meteorologist, Pharmacologist, Physicist, Plant Breeder, Poultry Scientist, Soil Scientist, and Zoologist.

• Teacher: College, Seminary, and University.

Generally speaking, qualified professionals in the above occupations must, at minimum, possess a Bachelor’s degree from a United States, Canadian, or Mexican educational institution in a relevant occupational field. A state/provincial license may be accepted as well. In certain limited cases, such as the occupations of Management Consultant and Scientific Technician/Technologist, an Associate’s degree and/or relevant experience may also be accepted for qualification. A Scientific Technician/Technologist must work under the direction of an engineer or scientist.

Although, practically speaking, it is generally recommended that the applicant obtain United States licensure to engage in the activity, the United States Department of State Foreign Affairs Manual explicitly makes clear that licensure is a post-entry requirement (that is, a TN application cannot be denied solely based on lack of United States licensure), except for Registered Nurses, which makes it an easier pathway for states like Texas, which may require work authorization or a Social Security number for the licensure process.7

A potential employee from Canada can take the documents to certain preclearance airports or ports of entry and receive the status, while those from Mexico are generally required to receive a visa from the consulate.

Spouses and unmarried children (under the age of twenty-one) of TN Visa holders are eligible to travel and stay in the United States as dependents.

PERM Labor Certification, Immigrant Petition, and Consular Immigrant Visa Processing or Adjustment of Status to Permanent Resident

Absent an exception or unique qualifications, the most common way for a United States company to sponsor a noncitizen for permanent residency based upon employment requires a PERM Labor Certification from the U.S. Department of Labor (DOL). The PERM Labor Certification is a formal test of the labor market to confirm that no willing, qualified, and available United States workers exist to fill the position, which currently takes about two years from start to finish. Although this seems like a difficult threshold, an experienced business immigration attorney can guide the employer through the process.8

Once the DOL certifies the labor certification, an employer can file an immigrant petition on behalf of the candidate with fifteen business days’ premium processing (that is, extra fee). Depending upon the candidate’s immigration status at the time and country backlogs in green card or immigrant visa availability, the noncitizen can complete the process through a United States Embassy or Consulate in their home country or as an adjustment of status to permanent resident from within the United States, which often takes about another year or two, except for nationals from India and China, depending on the education level required for the job. Countries such as India and China have backlogs due to the greater number of applications over the last few decades. There are per-country limitations and category limitations per year that backlog some countries more than others. Spouses and unmarried children (under the age of twenty-one) of applicants hereunder are eligible to file for green cards alongside them.

Certain occupations, listed as Schedule A under the DOL regulations, are already designated as occupations with a shortage and can skip the labor certification and the two-year process. Thus, registered nurses and physical therapists, can take half as much time to complete the process. There are other categories that do not require an employer to petition for the worker, such as National Interest Waiver cases and Extraordinary Ability Cases. These require meeting certain factors and allow one to skip the labor certification process since these candidates are deemed to be exceptionally abled, and their presence would be in the national interest of the United States.

Other Temporary Nonimmigrant Visas

In addition to H-1B and TN, there exists an “alphabet soup” of visa types with letters and numbers associated with the section of the Immigration & Nationality Law Act and Code of Federal Regulations for each type of approved activity.

A recent public discussion about the H-1B visa category resulted in President Trump stating that his properties such as Mar-a-Lago use H-1B visas, but it is more likely that he was referring to the H-2B Temporary Non-Agricultural Worker Visa, which is for seasonal workers commonly in hospitality and other industries for which a season can be demonstrated. The drawback with this category is that there are significant compliance requirements and limited numbers of these types of visas are available annually. The other H-2 visa—the H-2A Temporary Agricultural Worker Visa—is heavily used for purposes of sponsoring seasonal farm workers.

Many entrepreneurs in the United States come from countries with a special treaty that allows for the opening of an import/ export international trade office (E-1 Treaty Trader visa) or the startup or purchase of a business (E-2 Treaty Investor visa), which has a job creation component. Where a treaty does not exist, the L-1 Intracompany Transferee visa category is available for United States expansions of existing international companies.

Other less commonly considered temporary nonimmigrant visas include O-1 Extraordinary Ability and various types of P visas for professional athletes and other arts and performances. In the discussion of immigration, many people may forget about Luka Doncic, Victor Wembanyama, Hakeem Olajuwon, Dirk Nowitzki, Manu Ginobili, Tony Parker, etc.

It is important to keep in mind that these are temporary visas, generally approved in increments of one to five years, and they do not—by themselves—create a pathway to permanent residency to remain indefinitely in the United States. Each type of temporary nonimmigrant visa requires that the individual maintain the activity and compliance, in order to remain in the United States. There are separate legal classifications and categories to pursue permanent residency.

Employment Authorization Documents

There are many different categories that allow the applicant to file for an employment authorization document (“EAD”) or work permit. A work permit is not the same as a visa and is not a designation of legal status. These categories include Deferred Action for Childhood Arrivals—DACA, Occupational Practical Training—OPT, Temporary Protected Status—TPS, asylum, humanitarian parole, H-4, etc. These work permits are often inaccurate as to expiration dates since they can currently be automatically extended beyond their expiration for up to 540 days, depending on required action by the applicant. Many of these programs that grant EADs are potentially going to be targeted by the current administration.

Form I-9 and Employer Compliance

During the interview process for any candidate, it is important that the employer avoid national—origin-based discrimination claims by limiting questions about a candidate’s immigration status to: “Will you now or in the future require sponsorship for work authorization?” If the answer is yes, then employers should consult with a business immigration attorney about the available options for sponsorship.

For all United States employees, including United States citizens, permanent residents, and noncitizens, employers are required to verify the identity and work authorization of their employees with the Form I-9. Employees are required to complete Section 1 on or before the first day of employment, and employers are required to verify employment eligibility with List A or List B and C documents, at the employee’s choice, on or before the third day of employment.

Worksite Audits and Raids

Under the current Trump Administration, it is likely that there will be more worksite audits in the coming years. The previous Trump Administration’s goal was to conduct around 6,000 audits per month, and this Administration is promising a return to the worksite raids—after President Biden largely put a stop to such enforcement tactics— and will also likely focus on compliance of electronic I-9 systems.

The administration will presumably target L and H-1B employers for audits, as President Trump has stated during his first term that he believes both of these classifications to be “wrought with fraud.” However, he recently said he “likes” the H-1B visa which is supported by many large employers, including Elon Musk. The push and pull factors of immigrant labor have been a cornerstone of American economics, and that is not going to change, despite a proposed mass deportation plan of all immigrants in the United States.