Creating an Employment Immigration Strategy for the Future



Introduction

Nearly 2.5 million jobs in the science, technology, engineering and mathematics (STEM) fields went unfilled in 2018 and millions more will remain open this year, according to the U.S. Department of Labor. To understand a key reason why, consider the case of Phae Megat.

Megat (not his real name), a Malaysian native, came to the U.S. on a student visa to pursue a Ph.D. in electrical engineering at Stanford University. After graduation, he moved back to Kuala Lumpur to work as a geoscientist for a subsidiary of an international oil and gas company.

In 2013, Megat transferred to the company's Houston headquarters to work as a geoapplications specialist. Four years later, he was repatriated to Kuala Lumpur to fill a position that was vacated by a retiring geoscientist with similar skills.

​Megat has reached a crossroads. He wants to work in the U.S., but his employer needs him in Malaysia. Although he has been applying for jobs in the U.S. with other organizations, Megat has found that, despite his impressive credentials, companies are reluctant even to interview him. He suspects this is because of his work visa status, which is why he doesn't want to reveal his real name. 

Employers, on average, reported that they had three people working full time on managing the organization’s immigration processes.
Source: SHRM Council for Global Immigration 2016 Employer Immigration Metrics Survey.

Typically, a company would apply for an H-1B visa for an applicant with his skills. However, only 85,000 H-1B visas are granted annually to U.S. companies using a randomized lottery system. About two-thirds of applicants are rejected.

Changes to immigration policies since 2016, particularly to the H-1B visa, are making it harder for U.S. companies to hire foreign STEM talent, ostensibly due to concerns that foreign nationals are depressing wages and taking jobs away from U.S. citizens. "The size and skill of our STEM workforce will be the most important determinant of our global economic competitiveness for decades to come," wrote former Texas Rep. Lamar Smith in a 2017 op-ed when he was chair of the House Committee on Science, Space, and Technology. 

Others characterize the debate over global versus local talent as a false dichotomy.

"The talent gap is real," says Richard Burke, CEO of Global Envoy, a Chicago-based immigration technology company. "There are currently more job openings than American workers to fill them. It's a both/and, not an either/or."

The key to plugging the gap, he contends, is to identify opportunities to develop a workforce that blends global and local talent.

Closing the Gap

When companies can't find the talent they need from the U.S. workforce, they tend to look to two populations, says Lynn Shotwell, senior vice president and head of global operations at the Society for Human Resource Management (SHRM). "They go to colleges or universities, where more than half of the students pursuing STEM degrees are foreign students, or they look for experienced foreign talent to build a global workforce."

It takes a knowledgeable and agile team of HR staff, senior leaders, managers, immigration attorneys and technology vendors working together to find the best talent solutions. Along with being strategic business partners, they all need to be well-versed in current visa programs in order to determine which ones are most appropriate for different positions and employee populations.

"Companies should take solace in the fact that the H-1B isn't the only option that can benefit their employees," Burke says. L visas, O visas, OPT-1 visas, green cards, and TN visas for professionals from Canada or Mexico are other possibilities for companies to consider when looking for ways to close the talent gap and build workforce capabilities.

Kimberly-Clark Corp., a personal care company headquartered in Irving, Texas, uses a workplace planning and talent recruitment strategy leaders call "Buy, Borrow or Grow" to determine the company's best staffing mix.

"There's no [perfect] right mix," says Burgette White, the company's director of HR and talent management. "It's more art than science."

Kimberly-Clark prioritizes growing talent internally and, if necessary, borrowing employees from other parts of the organization to address talent gaps. If no one in the organization is "ready now," the talent acquisition team searches the marketplace to see who's available.

Employer-Based Immigration Challenges

of respondents reported that they had lost key organizational talent due to H-1Bs being unavailable under the cap.	​ of employers reported that the ability to obtain visas in a timely, predictable and flexible way is critical to their business goals.
​ ​Source: SHRM Council for Global Immigration 2016 Employer Immigration Metrics Survey.

Although foreign nationals are often uniquely qualified for hard-to-fill positions, it can take months to obtain visas and work permits, White says. As a multinational business with offices in 36 countries, the company can circumvent the U.S. visa system either by moving talent from its overseas offices to the U.S. using an L (intercompany) visa or by moving U.S.-based employees to overseas offices. 

Multinational companies that are similarly committed to building their workforce capabilities may benefit from a robust college recruitment strategy.

"There's a lot of competition for foreign STEM students. Companies usually put a lot of thought into how they plan to develop these new graduates," says Justin Storch, global content strategist for SHRM.

Most foreign STEM graduates are eligible for an OPT-1 (Optional Practical Training) visa that allows them to work for a U.S.-based company for up to three years. Individuals who aren't able to obtain an H-1B visa during that time must pursue other options to remain in the U.S.

OPT-1 visa holders can go back to school for more education or be transferred to a satellite office or a subsidiary in another country. After acquiring more skills and experience, an individual may be able to relocate back to the U.S. using an L visa.

The O-1 Solution

The O-1 ("extraordinary abilities") visa is another option for employers. This merit-based visa has no quotas, and it is not dependent on the recipient securing a job offer. O-1 visa holders can work as independent consultants or contractors for multiple employers. They are also eligible for unlimited extensions as long as they continue to be productive.

While applicants don't need to be Nobel Peace Prize winners, they must show evidence that they have achieved recognition and acclaim in their field through, for example, awards, publications, mentions in trade publications or membership in prestigious organizations.

Liran Rosenfeld, an Israeli immigrant and founder of PassRight Inc. in San Francisco, describes the technology startup as "an O-1 company." The company's tool uses an algorithm to estimate the likelihood of success in obtaining an O-1 visa based on government criteria, and an embedded chat feature connects corporate clients to a select group of immigration attorneys who can facilitate the visa process. This whittles down the application time frame from months to weeks.

Source: SHRM Council for Global Immigration 2016 Employer Immigration Metrics Survey.

Relocating to Canada

The definition of mobility now includes people moving to where the jobs are as well as jobs moving to where the people live, Shotwell says.

One popular option these days is to locate an office in Canada because the country's merit-based system makes it easier for highly educated professionals with in-demand skills to obtain work visas. Unlike under the U.S. quota system, Canada grants enough employment visas to meet employer demands, making the country particularly appealing to Silicon Valley tech companies, tech startups and immigrant entrepreneurs.

In 2016, Parsable, a 45-person tech startup headquartered in San Francisco, opened a satellite office in Vancouver as a way to circumvent the slow and burdensome U.S. visa process.

"We wanted to access worldwide talent, and frankly that is easier to do in Canada than in the U.S.," says Yan-David Erlich, the company's former chief executive.

After two Parsable employees were closely questioned at the airport on their return to San Francisco from a business trip to Mexico, the company began thinking about expanding the Vancouver office in order to provide a safe employment haven for the company's U.S.-based employees, one-third of whom are foreign nationals.

Opening a satellite office gives U.S. companies access to a larger talent pool and opens up the possibility for other options such as L-1B visas, which allow businesses to transfer employees with specialized knowledge from an affiliated foreign office to the U.S.

Meanwhile, countries outside the U.S. are adopting different approaches to bring in skilled workers. Portugese government officials recently passed laws making it easier for Indian tech specialists to work in their country. And Japan, which has been historically resistant to immigration, is opening its doors to blue-collar workers to replace the nation's aging workforce.

Origins of the World’s Migrants to the United States, 1990-2017

Source: United Nations Population Division.

Building an Inclusive Culture

Most companies recognize that having a diverse, multicultural workforce gives businesses a strategic advantage. But "valuing diversity is not the same as having a sound business immigration strategy," Shotwell notes.

"Despite the critical role foreign nationals play in the success of a company, many organizations don't have a strong employee experience strategy in place to help workers acclimate to a new workplace," says Erik Prado, a Global Envoy content marketing associate.

But there are ways employers can help alleviate some of the anxiety and uncertainty experienced by many foreign nationals who immigrate to the U.S. for work.

First, companies can use technology to create an efficient and transparent process that gives international employees access to the information they need to ensure that they don't miss any legal deadlines or visa renewal dates.

Second, companies can offer immediate sponsorship of green cards.

"The quicker workers can get a green card, the less uncertainty there is," Storch says. "From a foreign national's perspective, it's about retention. If a company isn't willing to sponsor individuals for a green card, they might look for another company that is willing."

However, green card sponsorship does come with some risk to an employer: "It's expensive, it's labor-intensive, and the worker still might leave," Storch says.

There's also no guarantee that any employee, regardless of citizenship, won't leave for a better offer.

But in the end, when foreign nationals receive the support, encouragement and mentoring they need to succeed in the workplace, the employee and the enterprise are better for it.

Explore Further

​SHRM can provide resources to help you devise an employment immigration strategy that meets the unique staffing needs of your business. Here are some materials you can use to get started.

​Book Blog: A Guide to Employment Verification The I-9 and E-Verify Handbook provides an in-depth reference guide for employers verifying that individuals are legally authorized to work in the United States—something every employer in the country is responsible for, regardless of whether it hires foreign workers.

There are a variety of circumstances under which employers can engage foreign nationals to work in the United States on a temporary or permanent basis. Here's an overview of U.S. employment-based visas: the relevant laws and regulations, the administering agencies, and the various types of nonimmigrant and immigrant visas that permit employment in the U.S.

Immigration 101: Inside the U.S. Employment-Based Immigration System                         
The U.S. immigration system is complex. Here are the essentials you need to know to navigate the system and understand the different roles and responsibilities of the various government agencies involved.

Simple Filing Missteps Can Cost Employers Foreign Talent
Errors and paperwork omissions when filing for permanent labor certification of a foreign worker can lead to a denial from the Department of Labor and an affirmation of that denial from the Board of Alien Labor Certification Appeals.  

SHRM How-To Guide
How to Sponsor an Individual for an H-1B Visa

SHRM E-Learning: Fundamentals of Employment Visas

This course is an entry-level view on the subject of U.S. employment immigration and is relevant to HR professionals who need an understanding of how employment immigration law works.