H-1B Besieged: Keep Visa Options Open as Trump Cuts Immigration

With the Trump administration clamping down on the popular H-1B high-skilled visa program, employers should explore other options that might enable them to bring foreign workers into the U.S., according to a new white paper by Envoy, a global immigration services provider. 

The paper highlights a growing dilemma for many employers: They would like to hire foreign workers to address talent shortages, but they face resistance from an administration that is actively seeking to curb employment of foreign nationals. 

"While business becomes more globalized, national policies are tending more toward nationalism. The push and pull in U.S. immigration is perhaps more pronounced now than ever before," the authors of the white paper said. 

The H1-B program has taken center stage in the debate over the impact of foreign workers. Trump has criticized employers for using the visas to avoid hiring higher-paid American workers, and has signed an executive order instructing the Department of Homeland Security to review the way these temporary work visas are awarded. 

Enforcement has also been stepped up as immigration authorities are now taking a more targeted approach in visiting the workplaces of H-1B sponsors. Employers petitioning for H-1B visas have also been warned not to discriminate against American workers. 

If the heightened scrutiny around the H1-B program were not enough to deter employers, they also have to contend with relatively long odds when seeking to obtain such visas. In 2017, employers filed 199,000 applications for the H1-B, but only 85,000 were awarded due to federal caps. Although many employers and economists have urged the government to raise the H-1B limit, such a move is highly unlikely in the current political environment. 

Other Visa Options

Given this backdrop, it is easy to see why employers would shy away from applying for an H-1B. However, they might be surprised to learn that other, less well-known visa options are available and may be just as effective for obtaining foreign workers, the authors said. Some of these alternatives include:

F-1 OPT STEM Extension—This visa allows foreign students in science, technology, engineering, or math fields to stay in the U.S. and work for up to two years. The visa has no cap, and is one of the few that allow the applicant to work while the application is pending.

H-1B1—This visa is similar to the regular H-1B but is only available to citizens of Singapore and Chile. The visa has a cap but it’s rarely been met. Unlike the H-1B, the H-1B1 is not a dual intent visa, which means applicants must clearly demonstrate they have no intent to become permanent residents.

E-3 visa—This visa is also similar to the H-1B but is only available to Australian citizens. The E-3 is valid for two years and is subject to a cap that has rarely been reached. The visa allows spouses to work and can be renewed indefinitely.

TN visa—The TN (Treaty NAFTA) visa is restricted to applicants from Canada and Mexico. There is no cap, and candidates can apply at any time of year, which gives employers much more flexibility than with other visa application deadlines.

L-1 visa—The L-1 visa classification applies to intracompany transfers of key employees from foreign to U.S. worksites. Employers can transfer executives or managers through L-1A visas, and they can transfer professional employees with specialized knowledge through L-1B visas.

O-1 visa—This three-year visa is for people who have risen to the very top of their field in athletics, art, sciences, or business.

J-1 visa—The J-1 visa is for individuals approved to participate in work- and study-based exchange visitor programs and is valid for 18 months. 

As this list demonstrates, there are many options for hiring foreign workers. Given the current political climate, it is critical that HR departments keep abreast of any changes to the H-1B program and learn more about alternatives that might suit their company’s needs down the road.

The full white paper is available for download here, and it is also part of Bloomberg BNA’s International HR Decision Support Network , which provides news and employment law primers on more than 75 countries to help you stay compliant and develop policies for your international operations. Start your free trial today.