Beyond the H-1B Gamble: Alternatives for Securing Foreign Workers

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In keeping with the “Buy American and Hire American” Executive Order aimed at protecting U.S. workers, as of April 1, 2019, the H-1B visa program is subject to new rules modifying the lottery process and requiring employer registration.

The H-1B lottery is a result of U.S. employers petitioning for more than the allotted H-1B visas authorized by Congress. In fact, every year for the last five years, American companies have petitioned for more than double the maximum allotment of 85,000.

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The new lottery process is designed to give an advantage to persons eligible for the advanced degree exemption (the “master’s cap”), meaning they hold a U.S. master’s degree or higher. USCIS estimates this will result in a 16% increase in the number of H-1B workers with graduate degrees from U.S. colleges and universities.

Another change, effective for next year’s FY2021 H1B allotment, is the electronic registration requirement. All employers wanting to “play” the H-1B lottery will have to register online in advance, and only the selected “winners” will be able to actually petition for an employee. The USCIS believes this will make the H-1B process more efficient and cost-effective.

“WINNING” THE LOTTERY IS NO CAUSE FOR CELEBRATION

Being selected in the H-1B lottery is only the first hurdle. Requests for Evidence (RFEs) and denials have increased significantly. In the fourth quarter of FY 2017, the RFE rate for H-1Bs reached 69% as compared to 23% the previous quarter, and the denial rate rose from 16% to 22%.

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Furthermore, in 2017, USCIS rescinded its policy of giving deference to its own prior approvals when making decisions on visa extensions. This has led to sudden denials of existing employees’ H-1B visa renewals, leaving businesses scrambling to fill unforeseen gaps in their workforce. As a result, American companies face increasing limitations and risk suffering harsh consequences if they lose the H-1B gamble.

VIABLE H-1B ALTERNATIVES

Companies are often unfamiliar with other nonimmigrant visas available to secure foreign workers, such as TNs, O-1s, and L-1s. These classifications have no numerical limit, year-round availability, fewer government fees and reporting requirements, and ongoing premium processing for faster government turnaround.

NAFTA PROFESSIONALS

The U.S.-Mexico-Canada Agreement signed Nov. 30, 2018 retains all the TN visa provisions from NAFTA. The TN NAFTA Professional visa provides Canadians and Mexicans work authorization in many designated professions, including accountants, computer systems analysts, engineers, hotel managers, nurses, pharmacists, social workers, and scientists.

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These three-year visas can be continually renewed, and Canadians may apply at the border – streamlining the process, increasing the speed of onboarding, and decreasing the costs to employers. This visa is a great option for North Carolina employers, where over 30% of immigrants are from Mexico.

EXTRAORDINARY INDIVIDUALS

North Carolina’s dynamic economy boasts a highly educated population, multibillion-dollar R&D industry, professional sports teams, modern performing arts centers, and renowned restaurants. Companies seeking to recruit top talent from around the world to grow these economic drivers in our state should consider the O-1 visa.

The O-1 visa is for individuals with extraordinary ability in the sciences, arts, education, business, or athletics, or extraordinary achievement in the motion picture or television industry, and who have been recognized nationally or internationally for their accomplishments. These include cutting- edge scientists and inventors, expert medical clinicians, distinguished research scholars, top international chefs, and world-class athletes and coaches.

While the eligibility criteria are stringent, this visa allows employers to hire the best and brightest worldwide without annual limits or deadlines.

LEVERAGING MULTINATIONAL CORPORATIONS

North Carolina is also home to four international airports, 14 Fortune 500 and 26 Fortune 1,000 headquarters, and RTP alone has more than 200 global companies. The L-1 visa allows American companies with a qualifying overseas business to transfer its specialized employees, managers, and executives from the organization abroad to its U.S. operation.

The L-1 visa is also an option for overseas companies that acquire an existing U.S. business or who seek to establish a new U.S. office. Spouses of L-1 visa holders are also eligible to work.

TN, O-1, and L-1 visas give American businesses additional options to the H-1B in order to hire and retain exceptional personnel from across the globe. Nam Douglass

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