Before the coronavirus pandemic, recruiting and retaining highly skilled talent had been a top issue facing companies. That will likely continue to be the case post-pandemic.
Increasingly, hiring means looking beyond US borders. Meanwhile, the US immigration process has become a high-stakes undertaking for employers, workers and entrepreneurs. Predictability has eroded. Processing times have soared. And any mistake or misstep could have harsh consequences.
Moreover, employers and individuals should methodically approach immigration by first identifying their long-term goals, strategically evaluating the options available and selecting an option—and a backup plan—that meets those goals. There are many immigration options to choose from, and leveraging these tools can help your organization meet its recruitment goals.
There are three visa types:
- Nonimmigrant visas: Individuals who hold nonimmigrant visas must demonstrate that their stay in the United States is only temporary and they intend to return to their home country. This is called nonimmigrant intent. It is very difficult to shift from a nonimmigrant visa to an immigrant visa (green card).
- Immigrant visas (green cards): Individuals who hold immigrant visas intend to stay permanently in the United States. They can live and work in the United States and travel abroad with few restrictions. Immigrant visas provide a path to US citizenship, which is required for some jobs needing security clearance.
- Dual intent visas: These visas are nonimmigrant visas, but the individuals who hold them can apply for a green card.
Most employers use one of these temporary visas (that require employer sponsors) for prospective employees:
- E-2 Visa for a citizen of a country that has a trade treaty with the United States. Last year, Israel was added to the list of trade treaty countries. If the individual is a citizen of a country without a trade treaty, such as China and India, getting an E-2 visa is doable if the candidate first files for citizenship with a treaty country, such as Grenada.
- E-3 Visa for Australian nationals with specialized theoretical or practical knowledge.
- H-1B1 Visa for citizens of Chile or Singapore for a specialty occupation.
- TN Visas for citizens of Canada or Mexico to fill certain professional positions, including computer systems analysts and engineers.
Dual Intent Visas
The United States offers only a few dual intent visas, all of which require an employer sponsor:
- H-1B Visa for individuals with specialized skills who fill a position that’s difficult to fill with American workers. The annual H-1B lottery determines who is eligible to apply for one of the 85,000 H-1Bs available each year. Nonprofit and government research organizations are exempt from the cap.
- L-1 Visas provide the opportunity for an employer to transfer an employee from a foreign office to the United States if that employee has worked there for at least one year. The L-1A Visa allows the transfer of managers and executives; L-1B is for employees with specialized knowledge.
- O-1A Visa is for individuals with extraordinary ability. The requirements are more stringent than for an H-1B, but the O-1A has no annual cap and allows for unlimited renewals. An individual must meet three out of eight criteria, which include winning a nationally or internationally recognized award, such as Cyber Defense Magazine’s InfoSec Award, or the Cybersecurity Excellence Award, being featured in a major trade or other publication for work in the field and writing scholarly articles.
Most immigrant visas—or green cards—require an employer sponsor.
Some require employers to obtain labor certification from the US Department of Labor before filing for a green card to prove that no qualified US workers are available for the position sought by the foreign employee. The process is designed to ensure the wages and working conditions of US workers are not adversely affected. They include:
- EB-2 Green Card for individuals with a master’s degree or higher in a field related to the position.
- EB-2 Green Card for individuals with exceptional ability in the sciences, arts or business.
- EB-3 Green Card for skilled professionals with at least a bachelor’s degree and two years of training or work experience.
The few green cards that don’t require labor certification still require an employer sponsor and have high bars for approval:
- EB-1A Green Card for individuals with extraordinary ability.
- EB-1B Green Card for outstanding professors and researchers.
- EB-1C Green Card for an executive or manager.
- EB-2 NIW (National Interest Waiver) Green Card for individuals with exceptional ability in the sciences, arts or business. Employers must show that employing the individual will benefit the United States.
Individuals can apply for these green cards without a sponsoring employer:
- EB-2 NIW
- EB-5 Green Card for individuals who invest $900,000 to $1.8 million in a company or real-estate project that creates at least 10 full-time jobs for US workers.
Immigration is complicated. But it’s possible to find cutting-edge immigration solutions to meet your hiring goals.