American employers are facing possibly the greatest labor crisis of our time, with more job openings than there are willing and able workers to fill them. Many employers cite this shortage of workers as the single greatest obstacle between them and recovering from the damage inflicted by the pandemic. This has led many to look to foreign labor and the H-1B visa program in particular for help in filling out their workforce, but this is not the only visa available to help with labor shortfalls. When local talent is not available, looking to these may be the best option for quickly onboarding workers. Here is a breakdown of the nonimmigrant visa programs employers should be familiar with.
These visas assist with the ability to perform trade and investment between the U.S. and countries that have entered into a Treaty of Friendship, Commerce, and Navigation (FCN) or a Bilateral Investment Treaty (BIT) with the U.S. What these treaties do is allow companies that have a significant foreign ownership transfer prospective workers of the same nationality as the majority owners to the U.S.
These visas offer considerable advantages when they are a possible option as there are no quotas on how many can be issued in a year. Plus, there are no limits on extensions, and the worker may be able to file an immigrant visa petition should they choose to remain permanently.
These visa programs allow employers to bring workers to the U.S. for temporary labor needs. H-2A visas are for agricultural employment and are regularly used by agricultural producers for seasonal work. H-2B visas are for all other industries and similarly limit the term of employment.
Both of these types of visas impose strict requirements on prevailing wages and recruitment to ensure that American workers do not suffer as a result of foreign recruitment. Before this visa is granted, employers must obtain a temporary employment certification from the Department of Labor (DOL) that shows the company has attempted to recruit domestic workers but was unable to find enough. Further, there are strict annual quotas on the number of H-2 visas that will be granted, and these have a limited length of stay which will be determined by the DOL.
These visas permit U.S businesses to bring employees from their overseas locations to the U.S. However, these are limited to managerial or executive employees for the L-1A visa or specialized knowledge employees for the L-1B visa. An employee must have worked for the employer for at least a year for a qualifying entity.
What makes this designation particularly useful for employers is that a company can apply with the Department of Homeland Security for a blanket designation for its corporate relationships, which will allow it to avoid filing for individual petitions. Instead, employees can directly request a visa from U.S. consulates.
These visas were created by the North American Free Trade Agreement to allow for ease of mobility for workers between the U.S., Mexico, and Canada. With these visas, workers may be recruited from either Canada or Mexico for a variety of professional positions listed in the U.S.-Mexico-Canada Agreement on a temporary basis. The foreign national simply must have a job offer and relevant education or experience for the position to apply. There are no quotas or requirements for permission from the USCIS, and these visas last in three-year increments with no limit on extensions.
Recruitment of foreign nationals can solve many difficulties employers have faced in meeting labor requirements. However, it is important to keep in mind that there are more complexities in hiring these workers, most notably in complying with Form I-9 requirements. Documentation requirements can quickly become confusing, and reverification must be performed periodically depending upon the work authorization of the employee. One thing that can help is an I-9 management tool. This can take all of the guesswork out of completing the I-9 and guide employers every step of the way to ensure your workforce remains in compliance with federal regulations.