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Looking at strategic alternatives to H-1Bs during H-1B cap season

by Leigh Polk Cole

Each year, employers looking to hire H-1B workers for hard-to-fill positions have to focus on preparing H-1B petitions for the April 1 H-1B lottery deadline. All you can do is hope for success in the lottery, which in recent years has led to H-1B approval in fewer than half the cases filed. Many of our clients—including colleges, universities, nonprofits affiliated with colleges and universities, and nonprofit and government research organizations—are exempt from the H-1B cap, so they can obtain H-1B approvals any time of year. If you are subject to the cap, H-1B cap season is a good time to consider strategic alternatives to H-1Bs that are more reliable and in some cases more cost-effective. 

Focus on countries with favorable immigration status
U.S. employers can hire candidates from Australia, Canada, Chile, Mexico, and Singapore without going through the H-1B lottery. Targeting your recruitment efforts in those countries can simplify the immigration process.

Canada and Mexico. TN status under the North American Free Trade Agreement (NAFTA) is available for citizens of Canada and Mexico to work in certain professions listed in NAFTA. Qualified professionals can extend their TN status indefinitely, a big advantage over H-1B status, which is limited to six years.

Qualifying TN professions include accountant, architect, computer systems analyst, economist, engineer, graphic designer, hotel manager, industrial designer, interior designer, landscape architect, various medical/allied health professions and dentists (not physicians), research assistants, and scientists and scientific technicians/technologists, among others. If the position requires a qualified professional in a field listed in NAFTA and you have a candidate from Canada or Mexico, TN status can be an easy and affordable alternative to H-1B status.

Australia. E-3 status allows citizens of Australia to work in any specialty occupation, meaning a job that requires at least a bachelor’s degree or equivalent specific vocational preparation in the field. The eligibility requirements match the requirements for H-1B status, but the H-1B cap doesn’t apply. Citizens of Australia can obtain E-3 status any time of year, unlike the April 1 filing required for H-1Bs.

Chile and Singapore. Similarly, free trade agreements between the United States and Chile and Singapore allow citizens of those countries to work in the United States in specialty occupations (like H-1B) outside the H-1B cap and with a simpler application process.

One way to find candidates is to identify U.S. colleges and universities that attract international students from Australia, Canada, Chile, Mexico, and Singapore and then recruit them to stay in the United States after they complete their degrees. International students in F-1 status for their studies at U.S. educational institutions qualify for up to one year of employment in their field for optional practical training (OPT) after they complete a degree.

Graduates in STEM fields can extend their OPT employment to up to 29 months (and soon 36 months) for employment with organizations enrolled in E-Verify. Please review the update on OPT STEM extensions (page 3) for more information.

Consider working with colleges and universities
Another way to take advantage of benefits under U.S. immigration law is to share employees with colleges and universities or nonprofit joint ventures with colleges and universities. If an employee has H-1B approval for part-time employment with a college or university (e.g., as a researcher, lecturer, or adjunct faculty member), she may obtain H-1B approval for employment with an employer subject to the H-1B cap (without going through the H-1B cap).

If your hard-to-fill positions could be performed by individuals who work at a college or university part-time in H-1B status, you can also employ them. Each employer must file its own H-1B petition and pay the applicable government fees, but concurrent employment with a college or university affords an exception to the H-1B cap for the individual’s other employer.

The New York City Economic Development Corporation (NYCEDC) and the City University of New York (CUNY) recently announced a new joint venture that will use the H-1B cap exemption for colleges and universities to allow businesses in New York City to hire H-1B workers outside the H-1B cap. The joint venture between NYCEDC and a number of CUNY institutions will be exempt from the H-1B cap and will offer H-1B employment to entrepreneurs who otherwise are subject to the H-1B cap, so they qualify for concurrent H-1B employment at private-sector companies otherwise subject to the H-1B cap. The program is explained at www.nycedc.com/press-release/nycedc-and-cuny-launch-in2nyc-program-international-entrepreneurs.

Joint ventures with colleges and universities can enhance vibrancy and town-gown relations in the local business community and help businesses hire international candidates for critical or hard-to-fill positions using available exemptions to the H-1B cap. We have relied on such arrangements with colleges and universities to help employers subject to the H-1B cap make critical hires that otherwise would have been impossible.

Consider long-term immigration prospects at the time of hire
TN status under NAFTA has the advantage of indefinite duration, with extension available every three years. But most immigration categories are limited to a maximum period of time that varies according to the category. When you hire a person in any immigration status, it’s important to look ahead and determine whether the position and the person will qualify for permanent residency sponsorship and, if so, whether your organization is willing to offer permanent residency sponsorship and go through the necessary application process.

You shouldn’t assume that permanent resident status will be available in all cases. There are a variety of considerations, including the availability of U.S. workers, regulatory requirements on the minimum qualifications for the job and the candidate’s credentials, and the cost of the permanent residency process. That said, in many cases the need to fill a job and the candidate’s eagerness to take the position outweigh the need to confirm at the outset that a transition to permanent residency will be possible down the road.

For onboarding of all international candidates, your initial and immediate consideration will be whether there is an available immigration category that will allow them to start work within a reasonable time frame and remain employed for at least a few years.

Be strategic about immigration for your organization
Navigating U.S. immigration can be difficult or impossible if your recruitment and hiring decisions are made without understanding the opportunities presented by the law. If you know where those opportunities exist, you can use them to your advantage with strategic advance planning. Once your organization begins finding strong candidates who qualify for easy and cost-effective immigration approval, or you establish a mutually beneficial program with a college or university that allows you to hire H-1B workers without going through the H-1B cap, immigration will be a benefit rather than a nuisance.

Leigh Cole is an attorney with Dinse, Knapp & McAndrew, P.C., practicing in the firm’s Burlington, Vermont, office. She may be contacted  at lcole@dinse.com.