By Gregg Wartgow, Special to the Association of the Equipment Manufacturers (AEM) --
U.S. immigration policy has undergone significant change in recent years. Manufacturers may be wondering how to go about securing the skilled foreign workers needed to fill high-demand roles.
According to Ana María Mieles, counsel for the immigration law firm Fragomen, immigration is still a viable workforce platform for U.S. companies. Employers just need to understand the current state of those visa programs that are applicable to their needs.
Nonimmigrant Employment Visa Process
Short-term workforce strategies involve the use of nonimmigrant visa classifications. Mieles said there are several, and the concept of “intent” is crucial to all of them.
“Most of these nonimmigrant visa categories have strict temporary intent requirements,” Mieles said during a June 18 AEM Member Education Webinar. “In other words, people coming here must have the intent of only remaining on a temporary basis.”
There are some visa categories, such as H1-B and L-1, that are dual-intent. That means the foreign worker who is here on a temporary basis may also seek permanent residence while they are here.
Regardless, Mieles said there is typically a three-step process to obtaining a nonimmigrant employment-based visa in the first place.
Step 1. Employer files a petition with the U.S. Citizenship & Immigration Services (USCIS).
“This petition is generally taking eight to 10 months to be adjudicated, unless the petitioner (employer) requests that it be done on a premium processing basis,” Mieles said, adding that nearly $3,000 in additional fees apply to those requests. “But that will guarantee a much faster response, typically between 15 calendar days and three to four weeks.”
Step 2. If the petition is approved, the USCIS issues a Form I-797 (Notice of Action) to the beneficiary.
Step 3. The foreign national submits that approval notice to the U.S. Consulate in their home country. The Consulate then decides if the visa should be granted.
A number of strategies exist to help attract and retain the right people in the right roles, and AEM is here to help bring them to light through its Workforce Development Committee. Learn more.
Nonimmigrant Visas Manufacturers Can Pursue
B-1 for short-term business activities. This visa category has temporary intent and can only be used for “nonproductive” activities like attending meetings and conferences, conferring with colleagues, and negotiating contracts. On the other hand, activities like gathering client requirements and developing work products will often be viewed as actual work by an immigration officer, which would require an employment-based visa.
There are a couple of exceptions to “actual work” a manufacturer should understand.
First, the after-sale installation and/or servicing of equipment that was purchased from an overseas company is allowed if those activities were specified in the sales contract.
“This might sound like ‘productive work,’ but it is allowed under this provision,” Mieles said. “Anybody who is sponsoring a visitor like this should ensure that the visitor is well-prepared for their consular interview. They should have a letter explaining the origin of the equipment being purchased, and that the installation and repair commissioning are part of the sales contract.”
Second, short-term training can be allowed if it involves classroom training, participating in simulations, or attending orientation meetings. A foreign national can even be the person delivering the training if it’s specified in the sales contract.
“The key is that the foreign national must explain how they have unique knowledge of the equipment that is not widely available in the United States,” Mieles said.
Visa Waiver Program (VWP). This category allows 90-day, visa-free entry for business or tourism. That said, foreign nationals must have a valid Electronic System for Travel Authorization (ESTA) approval prior to travel. They must also meet all requirements as outlined by the U.S. Department of State, which includes being a citizen or national of a VWP-designated country.
There has been increased scrutiny surrounding this program, according to Mieles. To limit its risk, an employer should confirm that its foreign national is not from a restricted country. Additionally, more than 50 countries have bond requirements that can range from $5,000 to $15,000 at the time of application.
“It’s important to ensure that any business visitors you are bringing here are not subject to a bond,” Mieles said. “Also verify that they will be engaging in permissible activities (as outlined in the B-1 requirements). Finally, make sure these individuals are well-prepared for their entry interview so they are not denied entry.”
F-1 for students. There are two categories pertaining to this type of visa.
- CPT (curricular practical training) allows a student to work until their graduation if the work is part of the academic program.
- OPT (optional practical training) pertains to either pre or postgraduation in a field related to the student’s studies. A total of 12 months is permitted per degree program. Then the student could seek up to a two-year extension if the employer participates in the E-Verify program, and if the student has obtained a STEM degree.
Mieles said both CPT and OPT are facing increased scrutiny. The USCIS has expressed interest in not allowing students to work beyond their academic programs. Additionally, a proposed rule from the U.S. Department of Homeland Security was recently approved by the White House’s Office of Management & Budget. Among other changes, the proposed rule seeks to place restrictions on an F-1 visa holder’s duration of stay, requiring periodic extensions throughout the course of their studies. The proposed rule remains under review.
L-1 for intracompany transferees. This category allows sponsors to transfer overseas employees to an affiliated company in the U.S., such as a parent company, subsidiary, branch, or joint venture. Two types of employees are eligible: executives and managers, and specialized-knowledge workers. In either case, the employee must have worked for the company overseas for at least one consecutive year over the past three years.
Mieles said it can take at least eight months to obtain one of these visas. The maximum stay is either five or seven years, but an L-1 also allows the recipient to pursue a green card while they are here.
H-1B for specialty professionals. This is another dual-intent visa. It’s designed for employees being placed into roles that require at least a bachelor’s degree, although 12-plus years of experience could replace the need for a degree. The maximum stay is generally six years, although that could be extended if the foreign employee is pursuing permanent residency.
There is a 65,000-visa annual cap for the H-1B program, although another 20,000 visas are allocated for employees holding advanced U.S. degrees. Selection begins in April for employment commencing the next fiscal year, which begins in October.
According to Mieles, H-1B undergoes tight scrutiny under the Labor Condition Application (LCA) that’s certified by the U.S. Department of Labor (DOL). Among other things, an employer must attest that the wage paid to an H-1B recipient will at least match the higher of the prevailing wage or actual wage paid to similarly situated employees. Considerable documentation is required and the program is closely monitored.
“This is to ensure there is no undercutting of U.S. workers,” Mieles explained.
There have been some recent changes to the H-1B program as a whole. For one, higher-wage occupations are now given favor. Additionally, the DOL has proposed a rule to raise the wage minimum by an average of roughly 25%. Also, a $100,000 H-1B fee, instituted by Presidential Proclamation, places considerable financial burden on visa seekers. While this Presidential Proclamation continues to face legal challenges and work its way through the appellate system, the fee was still in place as of mid-June.
The H-1B situation remains fluid, however, which is true of many immigration-related programs right now. Mieles said immigration remains a viable platform to help close some of the skilled labor gaps that exist in manufacturing.
Employers just need to keep abreast of the latest developments, and develop strategies that can help secure the workers they need when they need them, and withstand the heightened scrutiny facing employment-based visa programs in the U.S.
Read Part 2 of this article which discusses the changing immigration landscape as it relates to retaining existing nonimmigrant employees.
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