Securing Foreign Talent in the Trump Era
Faced with more restrictive immigration policies, U.S. businesses should develop innovative strategies to secure and retain foreign national employees.
Historically low unemployment has reduced the supply of qualified workers for midmarket companies, a challenge compounded by restrictive U.S. immigration policies that make it difficult and costly for companies to employ foreign nationals.
In an effort to secure skilled talent, offering immigration sponsorship to foreign nationals—who must have a visa to work in the United States— has become a more common part of doing and sustaining business. Yet in recent years, the U.S. government has trended toward longer processing times, more requests for additional evidence, and more frequent denials— even in cases that previously would have been considered routine.
The government has heightened its scrutiny of H-1B visas—used for specialty occupations such as software engineers, accountants, financial analysts, graphic designers and management analysts, among other jobs—across industries, sometimes concluding for the first time that an entire occupational category is inconsistent with H-1B sponsorship, such as in the case of computer programmers.
L-1 visas, used for transfers within companies, have also seen more requests for additional evidence and an increase in denials. Employment-based green card applicants previously were not required to appear in person with an immigration officer; now they must attend an interview before their case can be approved.
The immigration service also adopted a new policy that eliminates the requirement that immigration officers defer to previous decisions in the same cases. Officers are now free to deny a case, even if it was approved previously or involved the same employee.
THE U.S. GOVERNMENT HAS TRENDED TOWARD LONGER PROCESSING TIMES, MORE REQUESTS FOR ADDITIONAL EVIDENCE, AND MORE FREQUENT DENIALS.
The government offers a useful expediting service called premium processing to accelerate processing times to just 15 days, rather than several months. But that service has been suspended twice since March 2017 for months at a time for certain H-1B case types.
These trends have stoked fear for both businesses and foreign nationals. Companies perceive new risks related to business continuity, costs and employee experience, while foreign nationals feel vulnerable in both a personal and professional sense. This new immigration environment requires that businesses develop innovative strategies and practices aimed at securing, retaining and supporting foreign national employees.
Taking Action
Faced with these new realities, businesses should ramp up communication efforts with foreign national employees and new hires. They should circulate information to employees about immigration changes through email or an internal company website. Companies should enlist their immigration service provider to hold calls, meetings and town hall sessions with employees to discuss their immigration status and strategies for maintaining valid work-authorized status going forward. Starting green card applications for valued employees earlier to avoid having to renew temporary work visas is among the strategies companies can adopt.
For new hires, companies should involve outside counsel early in the hiring process to make sure everyone understands the challenges associated with onboarding a candidate. It’s important to make sure all internal stakeholders—including talent acquisition, human resources and even business managers—are aware of any immigration-related pitfalls.
Companies should start the planning process early and engage in contingency planning where needed. If an employee will need to transfer from Bangalore to Los Angeles to work on a complicated technology project, for example, the transfer process should begin as early as possible to account for delays outside of a company’s control. Contingency planning is important as well. If the Bangalore-based employee is unsuccessful in securing a visa, is there another resource who has the skills to assist with the technology project in Los Angeles? There should always be a Plan B.
Companies should ensure they have the right external resources in place. An immigration service provider with expertise in business immigration issues can help with the cases themselves and partner with a company to navigate the evolving compliance challenges associated with employing foreign nationals.
The Trump Administration has said it will prioritize immigration enforcement, so companies should expect to respond to government investigators checking that employment-related immigration matters are in order. The best way for companies to protect themselves in the new era of business immigration is to develop a strategic program that is compliant, adaptable and well-informed.
This article originally appeared in the March/April 2019 issue of Middle Market Growth.
Chad Blocker is a partner in Fragomen’s Los Angeles office. His practice includes all aspects of corporate immigration.
Emily Allen is an associate in Fragomen’s Los Angeles office and counsels corporate clients in corporate immigration, with a focus on the retail and technology sectors.
