Brown: Successfully leveraging a limited (broken) immigration system

It is well established that the U.S. immigration system is flawed. For decades, the national conversation has been almost exclusively focused on border enforcement and undocumented workers. The employment-based immigration system is in part to blame, with very limited options for even degreed workers and other professionals. For instance, the H-1B program is capped annually at 85,000, despite consistent demand for new visas in the hundreds of thousands each year. While a handful of free trade agreements exist providing some relief, those visa solutions are limited to citizens of Australia, Canada, Chile, Mexico and Singapore. There are no meaningful options for unskilled and semi-skilled labor, nor for entrepreneurs. Even for positions the U.S. Department of Labor has formally identified as shortage occupations, options remain elusive. As for employment-based green card sponsorship, quotas abound here, as well, which kick in only after rigorous labor market testing to prove not a single U.S. worker is qualified or available for the position. Annual quotas associated with green card sponsorship are capped first based on the degree requirement for the offered position and then based on the applicant’s country of birth. This, coupled with “normal” government processing times, results in a path to green card that requires a minimum of three years in most instances and, for citizens of India and China, decades.

Needless to say, most employers are not pursuing foreign candidates until they have exhausted options within the domestic labor market. For employers attempting to navigate the limits of our immigration system for the first time, they are often surprised to find just how restrictive it is. So how do employers navigate and successfully leverage such a limited system when their needs are not being met through the U.S. workforce?

They understand when to sponsor and when not to sponsor

Employers are not required to offer immigration sponsorship to candidates applying for open positions. However, they are restricted in the questions they are permitted to ask candidates with respect to potential immigration sponsorship needs. They may ask whether the candidate is authorized to work without sponsorship and whether the candidate now, or in the future, will require employer sponsorship. It is only following an accepted offer that employers are permitted to inquire regarding the details of such sponsorship to develop a specific immigration strategy. As such, prior to and throughout recruitment for open positions, it is important for employers to understand the limits of the U.S. immigration system, which positions are likely to qualify for sponsorship, as well as whether the company should or would consider candidates requiring sponsorship for the position.

Clear and consistent hiring practices help employers avoid discrimination claims while reserving the immigration system to meet specific hiring needs. Employers also work creatively and commit to long-term solutions when faced with critical demands. Examples include focusing recruitment efforts on candidates who have already secured a coveted H-1B visa in the annual lottery (as opposed to foreign students entering the lottery for the first time), leveraging new and emerging solutions aimed at candidates with expertise in STEM and artificial intelligence and, when practical, allowing candidates to work remotely abroad until a U.S.-based solution can be secured. Moreover, employers who are successful within U.S. immigration limitations do what all employers of choice have figured out — they know what their employees need, and they deliver. For foreign workers, it’s as simple as keeping them in lawful immigration status, communicating what is and what is not possible based on individual circumstances, and positioning them for success whether they decide to remain in the U.S. long term or return home.

They understand their role in the immigration process

When employers choose to utilize the immigration system, they remain engaged in the process from the moment an employment offer is extended and continuing throughout the sponsorship period (which is measured in years, not months in nearly all circumstances). Not only does temporary visa sponsorship require employer engagement and participation to satisfy various compliance obligations, but the employer is making the filing on behalf of the foreign worker, not the other way around. Quite simply, it is the employer’s process to drive as sponsor and signatory on the paperwork. Likewise, various fees and costs associated with temporary visa and green card sponsorship must be paid by the employer in most circumstances.

Given their level of investment, sophisticated employers understand the complex and highly regulated nature of the immigration system and take into consideration not only foreign workers’ immediate sponsorship needs, but the long-term strategy required to support ongoing employment beyond the maximum period of stay associated with the temporary visa class. Permanent residence (green card) sponsorship requires thoughtful consideration of the employee’s immigration status history, employment performance, the employer’s short and long-term business objectives, and aggressive management of the timeline given significant processing times and quota-related delays. In other words, employers own and drive the immigration strategy on behalf of their sponsored foreign workers to help ensure long-term success.
They treat foreign workers same as U.S. workers (with a few exceptions)

When employers opt to sponsor foreign workers, the employees are folded into the fabric of the workplace culture without regard to their country of birth or national origin. In addition to maintaining compliance with federal discrimination laws, employers who treat foreign workers the same as U.S. workers also help satisfy certain wage and benefits attestations often required by visa sponsorship. There are, however, a few areas in which employers should be treating their sponsored foreign workers differently.

By virtue of the employer’s sponsorship, foreign workers are often restricted with respect to the occupational classification, offered wage and worksite location disclosed in the immigration filings made on their behalf. When there are changes to the terms and conditions of employment for a sponsored foreign worker, an amended filing may be required prior to such changes occurring. Additionally, certain controlled technologies may be restricted or require International Traffic in Arms Regulations or Export Administration Regulations licensure prior to release to sponsored foreign national employees.

Perhaps the most universal distinction between sponsored foreign workers and U.S. workers relates to navigating daily life in a country that is not one’s own. Sponsored foreign workers require extra attention and care with respect to dependent family member needs (such as spousal work authorization and children “aging out” of the immigration system), banking needs (including access to credit), driver’s license renewals and global travel needs. While employers are not obligated to address these items with and for their sponsored foreign workers, the successful ones recognize these unique opportunities for additional support as a part of the total package of offering immigration sponsorship.

Even for hard-to-fill positions, U.S. employers are often left to feel they are working in spite of the immigration system instead of with a system that supports innovation and ongoing growth. Until Congress enacts meaningful immigration reform that better aligns with the evolving needs of the American economy, foreign candidates will continue to flock to the employers equipped to navigate and leverage the existing system to their advantage.•

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Jenifer M. Brown is a founding partner of Brown Glier Law and practices exclusively in the area of immigration law. Opinions expressed are those of the author.