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A Better Partnership

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Jul 2017
28
July 28, 2017

Business Immigration Planning in Changing Times

Immigration has been a hot topic in the news for some time now. Regardless of the ebbs and swells of this debated area of law, the need of many industries for highly skilled foreign workers has remained essentially the same, as evident in the health care, higher education and manufacturing sectors. HR personnel must be able to navigate ever-changing regulations in order to plan the acquisition or continued employment of foreign talent with the least possible disruption to the employer’s business.

Perhaps the greatest regulatory change affecting the employment of foreign workers is the suspension of the United States Citizenship and Immigration Services’ (USCIS) premium processing program for H-1B visas. H-1B visas are one of the most common employment visas used by foreign professionals. Under the premium processing program, for an additional $1,225 fee, USCIS would process H-1B petitions in two weeks, as opposed to processing times that could otherwise vary from five to seven months or more.  USCIS suspended premium processing for H-1B petitions on April 3rd for a period of “up to 6 months.” By suspending H-1B premium processing, USCIS hopes to return to the approximately two month processing times of years past. Processing does seem to be improving, at least according to the “less than fresh” data posted on USCIS’s website.

The lack of premium processing can be particularly troublesome to HR personnel in new hire situations. Lengthy H-1B processing times can significantly delay employment start dates when the desired foreign professional is presently in a visa status that does not allow employment (such as some H-4 spouses of H-1B nonimmigrants) and also when the foreign professional has work authorization, but applies for employment close to the expiration of authorization that cannot be renewed (such as recently graduated students closing out a grant of Optional Practical Training [OPT]).

One way to manage the premium processing suspension dilemma is to request that USCIS expedite the H-1B petition. USCIS may expedite a petition where not doing so would cause severe financial loss, in emergency situations or for humanitarian reasons. Other uncommon criteria exist, such as matters concerning the U.S. national interest. Recent experience suggests that USCIS is favorably viewing financial loss and humanitarian requests.

Although premium processing has been suspended, longstanding provisions of H-1B law remain intact, such as “H-1B Portability.” Under the portability regulations, a foreign professional who has not engaged in unauthorized employment and who currently holds H-1B status with another employer may immediately begin work with a new employer upon the filing of the new employer’s H-1B petition. Thus, foreign H-1B professionals can switch employers and wait for the H-1B approval to catch up to them.

Two additional remedies can help alleviate H-1B processing delays, although neither can be said to be a panacea. First, new regulations allow the extension of some forms of work authorization upon filing. Thus, although a potential new hire’s work authorization may be close to expiring, some may be able to continue working, instead of having to wait approximately 90 days for a new employment authorization document to arrive by mail. Unfortunately, this does not apply to most foreign graduates on OPT. Second, the TN nonimmigrant visas for citizens of Mexico and Canada under the NAFTA treaty are sometimes overlooked by employers. If the NAFTA treaty applies to the employee and the job offered, TN visas are efficient alternatives to their costly H-1B counterparts.

Business immigration is a highly politicized area of the law, making it subject to volatile regulatory swings. HR personnel hiring foreign nationals should attempt to craft an immigration plan as early as possible to avoid delays and disruptions in the 
hiring process.

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