The Long Haul: Hiring International Employees
What U.S. employers can do when they’re committed to a foreign worker
By Nancy Henderson | Reviewed by Canaan Suitt, J.D. | Last updated on July 9, 2024 Featuring practical insights from contributing attorneys Elizabeth Ji, Reginald A. Pacis, Olivia S. Lee, Kalman D. Resnick and Ashley M. CruzUse these links to jump to different sections:
- Delays in the International Hiring Process Have Grown
- Annual Visa Caps vs. Employer Demand for Foreign Workers
- The Foreign Worker Advantage
- Working Through the Visa Process: Keep Your Eye on the Prize
- The Steps to Hiring a Foreign Worker Begin with the Employer’s End Goal
- Potential Barriers to Getting an Employment-Based Visa
- Staying Up-to-Date and Expecting the Unexpected in the Visa Process
- Weighing the Costs of Hiring a Foreign Worker
- Managing a Remote Workforce
- Find Experienced Legal Help
When attorney Ashley Cruz advises professionals from India who’ve been hired to work in the U.S., they are often taken aback when she tells them their residence process may take two years or more.
“They say, ‘Well, I saw on TV that I can get my green card in six months,’” says Cruz, who practices immigration law at Fragomen, Del Rey, Bernsen & Loewy in Boston. “While that might be true for some green card paths—every path is unique—for the ones that I work in, that’s not the case.”
Delays in the International Hiring Process Have Grown
Delays in hiring overseas workers have increased over the past 35 years, and the system has grown more complex. Meanwhile, as immigration attorneys point out, the laws governing the process haven’t changed much.
“I tell people it’s kind of like working on a computer that was built in 1990. It would be running really slowly, and it’d crash a lot,” says Reginald Pacis, an immigration attorney with Butzel in Detroit. “You’d have to add all sorts of software and hardware patches to keep it working.”
Annual Visa Caps vs. Employer Demand for Foreign Workers
The annual cap on H-1B nonimmigrant (temporary worker) visas is currently at 65,000, plus another 20,000 for those with advanced degrees earned in the U.S.—a lottery selected only about 25 percent of applicants in 2023. The maximum number of employment-based (EB) green cards—immigrant visas for those seeking permanent status—is still 140,000.
These obstacles have done nothing to stifle demand by employers, especially for foreign workers trained in STEM fields such as mathematics, engineering, and medicine. “The main reason businesses are looking to other countries is because they’re invested in wanting to hire the right person for their business, even if they are somebody who may be coming from out of the United States,” says Elizabeth Ji, of The Ji Law Firm in Suwanee, Georgia. “As a solo practitioner, I’m finding that smaller businesses, even if they want to sponsor one person, are now looking at sponsorship for a visa as an option in truly hiring the best and brightest, regardless of nationality.”
Not surprisingly, misconceptions are rampant. According to Pacis, “People always have this misnomer that foreign workers are here to replace U.S. workers. They are not. They are here to supplement our workforce.”
The Foreign Worker Advantage
Foreign workers come with many benefits, say attorneys who counsel employers on the issue, including:
1. Recruiting Top Talent
“Sometimes they possess a skill set that is very difficult to find among U.S. workers,” says Olivia S. Lee, an immigration attorney with Minami Tamaki in San Francisco. “Employers are willing to devote the resources, the time, the money to hire these workers.”
Adds Pacis, “You just want the best team. You don’t care where they’re from. You’re just trying to give your company the best competitive advantage.”
2. Counteracting an Aging U.S. Workforce
The aging American workforce is also causing some employers to consider hiring from outside the country. One manufacturing client confided to Ji, “‘Eighty percent of my employees in 2024 became eligible for Medicare.’ What that means is he’s losing them faster than he can replace them, and the business is already turning away work because they don’t have enough people,” Ji continues. “So there are two problems here: He’s leaving money on the table because he doesn’t have the manpower. And two, he’s going to have a big problem when these people, at any given time, say, ‘I’m done. I’m retiring.’ So we’re looking abroad to fill the gap.”
Hiring—and retaining—foreign workers is far from easy, however, so everyone involved must be in it for the long haul. “If you want to sponsor for a green card, the employer has to make sure they want to commit to that foreign national,” says Pacis. “But we also want to make sure that foreign national employee is really committed to that employer.”
Working Through the Visa Process: Keep Your Eye on the Prize
It’s generally up to the employer to complete the process of getting foreign workers to the U.S. and securing the correct status for them to stay. But the sheer number of visa categories alone can make anyone’s head spin. “Being an entrepreneur, you have to have your eye on the prize,” says Ji, who suggests hiring a lawyer to help you design a detailed employment plan. “You don’t have time to sit there and learn the intricacies and the nuances of immigration law for your business.”
And once the employee is here and working, an attorney can also help keep you in compliance with complex, sometimes obscure, laws mandated by U.S. Citizenship and Immigration Services (USCIS), U.S. Department of Labor (DOL), and U.S. Department of Homeland Security (DHS). The slightest change in the business or the foreign worker’s employment, from moving the office one block over to giving the employee a promotion or raise, can require an update to USCIS, for example.
“Having outside counsel that only focuses on the ever-changing environment of immigration law is going to be helpful because now employers don’t need to worry about making sure that they’re in compliance as they shift and move,” Cruz says. “That’s our job.”
The Steps to Hiring a Foreign Worker Begin with the Employer’s End Goal
So, let’s say you’ve exhausted your options for filling that niche position with a U.S. worker, and you’re looking abroad. Now what? Start with the end goal in mind.
“For example, you’re talking to this foreign student who’s overseas,” says Cruz. “How quickly do we want this person here? Can we start looking at some nonimmigrant visa options for them? And then, while they’re processing, do we want them here long-term?”
You may not have to search abroad to find the right candidate. Recent college students and graduates who were approved to study in the U.S. on an F-1 visa, for example, can apply to receive up to at least 12 months of employment authorization and are often looking for jobs or internships in the States.
Potential Barriers to Getting an Employment-Based Visa
Find out if there are any barriers that might prohibit your pick from obtaining employment-based visas, says Kalman Resnick, who directs the immigration practice group at Hughes Socol Piers Resnick & Dym in Chicago to recruit and retain global talent. “There could be a bar based on a criminal record, even a relatively minor one. There could be a bar because the person was in J-1 exchange visitor status and has an unfulfilled two-year foreign residence requirement that obligates them to return to their home country for two years. If you don’t get all the facts right, it’s very possible a mistake will be mad,e and an employer is going to waste their time and money trying to employ someone who they can’t under our nation’s immigration laws.”
For some types of visas, employers must also prove they can’t find a qualified U.S. worker for the job. This is initiated by filing an application for permanent labor certification (PERM) with the DOL to demonstrate that no U.S. workers are available and that the foreign worker will be paid the prevailing wage as determined by the DOL.
If everything checks out—and you’ve been able to weather the tedious process so far—you’re ready to file a petition with USCIS to sponsor the person you want to hire. “Keep in mind that a lot of this is still done by mail because there are problems with the electronic filing,” says Pacis.
Staying Up-to-Date and Expecting the Unexpected in the Visa Process
Work with your attorney to stay current on all immigration documents and expiration dates. For each H-1B worker, you’ll need to create a public access file that includes, in part, the job description and pay rate; failure to do so can result in compliance issues and possible penalties. Likewise, be prepared for an impromptu inspection by an officer from Homeland Security’s Fraud Detection and National Security Directorate. “Sometimes they’re just run-of-the-mill, just making sure that you’re abiding by terms and conditions,” says Cruz. “But it can be a little bit nerve-wracking if you’re not prepared for it.”
Throughout the process, expect the unexpected. “What, realistically, could pop up?” says Cruz. “What if USCIS changes the form and now, all of a sudden, they can process much faster? On the flip side, what happens if we have another COVID-19?”
And never, ever cut corners by, say, bringing in a worker on an easier-to-get tourist visa. It’s illegal. “The company might be slapped with a fine,” Ji says. “But for the individual, it’s like you’re taking away their whole future, their ability to come to the United States—ever.”
Weighing the Costs of Hiring a Foreign Worker
Hiring a foreign worker is already complicated and time-consuming. And then there are the expenses, including those for legal services, government applications and relocation. Says Lee, “The two questions I always get from employers are: What’s the timing and what’s the cost?”
The first answer depends on the visa classification and the annual limit of foreign residents allowed to leave a particular country, but it can take years. Ji says the current backlog in approvals for those born in India and China is more than a decade.
One option for business owners facing staffing shortages is to hire foreign workers who already have temporary protective status, such as natives of Ukraine, Venezuela, El Salvador, Sudan, and Syria. “Employers are looking for all kinds of ways to meet the hiring and retention challenges that developed during the pandemic,” Resnick says. “There are creative, lawful ways to use our immigration laws to find employees who can fit an employer’s needs.”
When weighing the cost of hiring foreign workers, the attorneys note that employers need to look at the big picture. One of Ji’s business clients tried everything he could think of to fill a critical position with an American job seeker, but the perfect employee—the one who “checked all the boxes”—hailed from another country. The client worried he couldn’t afford the expensive sponsorship. “When I laid out the numbers for him and how it’s kind of spread out because it’s a multiyear purpose,” says Ji, “he was like, ‘Oh my gosh. Why didn’t I do this sooner?’”
Another common concern: What happens if, after going to all the trouble to bring the skilled foreign worker to the U.S., they want to leave and go to another company? Accept that they have the right to do so and calculate your probable return on investment. Says Ji, “Employers that know this and can factor this in will have a better time separating the personal emotions from something that is transactional.”
For many U.S. businesses, the advantages of hiring immigrant workers far outweigh the effort to get, and keep, them here. “Recruiting and retaining talented and productive workers is really important to employers in today’s economy,” says Resnick. “Many employers find that immigrant workers are highly motivated to succeed at work because they recognize that their workplace is their surest path to success in their new home.”
Managing a Remote Workforce
Sometimes, it makes more sense for an employer to hire and manage one or more workers overseas rather than bring them to the U.S. With remote work, there’s no need for visas—either permanent or temporary—and no immigration issues because they’re not physically working on U.S. soil.
But that can get tricky, too. Without the proper immigration classification, an American-based employer can get in hot water by flying a remote foreign worker to the U.S. site for a business meeting. An immigration officer could deem such activity as unauthorized, which could lead to permanent barring of the foreign employee from working in the U.S. or even applying for a visa. “If that person is working remotely in their home country,” says Pacis, “they’ve got to be remote, period.”
Since not all foreign-based workers employed by U.S. companies are eligible for a work visa, some employers sponsor only a few key stakeholders so they can travel back and forth. Different visa options are also available for multinational companies with a presence in both countries.
Ji routinely hires remote staffers to perform certain tasks for her law firm. “It’s just a matter of logistics,” she says. “For me, it’s better because I don’t have to expand my office square footage, even though I hire more people to do more work because they’re working from home. It gives me access to a larger talent pool because I’m not restricted by geography, and I feel like I can truly then screen and pick the best for me and my business.”
Of course, there’s a downside to everything, including managing an overseas crew. You run the risk that your remote workers are also working for another company—or several. They’re not as mobile as they would be if they lived in the U.S., and you and your managers will need your own work visas if you intend to supervise staff members abroad. Cost can also be a factor, so a feasibility study might be necessary to ensure the business model works for you.
They also aren’t subject the U.S. regulations, but rather that country’s. “So it is important to reach out to an attorney who practices in the worker’s country to ensure compliance with local employment, labor, and tax regulations,” says Cruz. “This can be a complex global mobility issue, and I would not try to navigate this alone.”
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