Visa Options: Hiring in the Wake of Executive Action

November 26, 2014Articles The Legal Intelligencer

This time of year, many companies are making hiring decisions that will impact their businesses for the following year. Will your company be able to hire highly skilled foreign workers who have been identified for employment? Or will the U.S. visa system continue to stand in the way, forcing these talented prospects to look for work elsewhere, at a loss to your business?

With these and other burning questions in mind, 63 members of Congress wrote to President Obama recently imploring him "to take appropriate administrative actions within [his] clear, preexisting legal authority to address the urgent problems we face with our immigration system." The president heard this plea, and many others, to use his authority to break through pressing but stalemated immigration issues that inflict damage on U.S. competitiveness.

Last week, the president announced his Immigration Accountability Executive Action plan (IAEA), which set forth dramatic initiatives to address parts of our "broken" immigration system. Along with greatly expanding deferred action for childhood arrivals (DACA) and establishing deferred action for parental accountability (DAPA) for undocumented parents of U.S. citizens and permanent residents, the president's executive action addressed border security and legal immigration. Unfortunately, the fixes to the legal immigration process, including increasing the number of H-1B skilled worker visas, require regulatory changes or an act of Congress. Neither is likely to take place before H-1B season.

Congress's letter to the president focused on the fact that, "unfortunately, our immigration system has not kept pace with the workforce needs of our economy." As any employer that is contemplating the hire of a foreign national knows, "the current system often prevents employers from hiring the workers they need, keeps workers needlessly separated from their families because of backlogs, and sends some of our brightest students back to their home countries to compete against us in the global economy. This is due in part to insufficient H-1B visas for high-skilled workers, which must be distributed by lottery each year, as well as extreme backlogs for green cards that stretch into the decades for certain categories."

In the meantime, employers are always looking for new talent, entrepreneurs are starting new businesses, and a new crop of students is looking for jobs. The implementation of IAEA seems likely to open some employment options, but for the moment, employers and foreign nationals must make the best of the current law, strategizing based on existing opportunities—and there are opportunities.

There are, in fact, a host of other visas in the alphabet soup of non-immigrant or temporary visas and statuses that permit employment. Of the non-immigrant statuses that provide employment authorization or provide eligibility to apply for an employment authorization document (EAD), some are nationality-based, some are talent-based and others are status-specific.

Temporary visa statuses based on nationality include:

• Pursuant to treaties, Singapore and Chile have specific numbers of H-1B1 visas set aside for their citizens—5,400 for Singapore and 1,400 for Chile. Since the treaties became effective in 2004, these caps have never been reached.

• Citizens of Australia benefit from an H-1B look-alike, the E-3 visa.

• The North American Free Trade Agreement provides qualified citizens of Mexico and Canada with opportunities not subject to a cap to be employed in specified occupations. From architects to zoologists, the list of occupations and qualifications for Treaty NAFTA status may be found online via the U.S. Department of State and U.S. Citizenship and Immigration Services.

• Temporary protected status (TPS) provides employment authorization eligibility to citizens of certain countries where the situation in their homeland has been determined by the Department of Homeland Security to present a danger to their returning home. The current nations designated for TPS are El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan and Syria.

• Treaty trader (E-1) and treaty investor (E-2) visas are available based upon the employee having the same nationality as the employer, that nation having a specific bilateral treaty with the United States, the trade or investment in the United States being considered substantial and the employee either being a principal or key employee. The treaty countries and the specifics of the treaties can be found on the Department of State website. You may find the list of countries surprising. For example, India, which has opened its economy to U.S. trade and investment, remains without an E treaty.

Temporary visa statuses based on talent include:

• Immigrants who are at the "top of their field" may be eligible for the O-1 "alien of extraordinary ability" visas. This status is sought by an employer and supported by extensive documentation as to the candidate's accomplishments and stature in the field. One doesn't need to be a Nobel Prize winner to qualify, but one must provide documentation in a number of categories such as original contributions to the field, publications or publicity of the work, citations to the work, etc.

• P visas are available to certain entertainers and members of entertainment groups.

• Q visas are available to certain people whose "culturally unique" work is displayed to the public.

Other Types of Visas

A common non-immigrant visa status that provides eligibility for some types of temporary employment authorization is the F-1 student visa. Students have employment opportunities on- and off-campus. One of the most common types of work authorization for which a student may apply is known as post-completion optional practical training, or OPT. When an F-1 student has completed a degree, he or she is usually eligible for one year of OPT. This permission allows the student to be employed performing work that puts into practice his or her education.

If the student has completed a degree in a STEM (science, technology, engineering and mathematics) field and the employer is an E-Verify participant, the student is able to extend the OPT for an additional 17 months. Although the STEM extension provides certain employers with a chance to play the H-1B lottery two years in a row if need be, OPT may not be further extended beyond the additional 17-month period.

Implementation of the IAEA or new legislation should eventually result in actual measures to improve the country's immigration system. One example where this seems potentially likely sooner rather than later includes the expansion of eligibility for work authorization to the H-4 spouse of an H-1B worker (note that a spouse of a non-immigrant who holds J, E or L status is currently eligible to apply for work authorization). However, this may be restricted to H-4 spouses of H-1B workers with pending permanent residency applications that hang in limbo due to retrogressed cutoff dates. Also, broadening the availability of deferred action work authorization beyond DACA and the establishment of DAPA will result in undocumented people becoming documented with employment authorization.

By providing additional work authorization alternatives, each of these executive actions could slightly reduce the demand for H-1B visas next April when H-1B cap season begins with the next H-1B lottery. Last April, employers filed approximately double the number of H-1B petitions as there were H-1B numbers available. That of course did not present good odds for these employers or their prospective employees.

With H-4 work authorization and expanded DACA and DAPA employment eligibility, the presidential action to expand the availability of work authorization options will help to relieve some of the uncertainty and anxiety experienced by employers that will likely be left wondering again next spring whether they will be able to employ a foreign worker who has been identified for hire. Regardless of the IAEA and even without congressional action, employers still have numerous non-H options to consider.