I was attending a Christmas party last week when a friend, who works for a prominent local employer, asked me, “What’s the latest in the immigration world?”
His question got me thinking: I am always taking urgent conference calls from employers who have visa issues, and filing visas at the very last moment. I think with 20-20 foresight (sic), now may be the best time to get employers to think about planning for the new hiring cycle and for new US visas, especially as the dreaded H1B visa season starts in a few months.
In 2012, H1B visas were over by June 15th, much faster than 2011 when the visas quota was finished only in mid-December. This H1B season, I expect H1B visas to be exhausted much earlier. We need to plan.
Typical attorney consultations are discussions about which visa is appropriate for an employee — not much of the discussion focuses on which visa can be used for future employees. However it is important for companies to also look to the future, and to begin thinking about their employees’ immigration needs while planning product lines and office locations. Company strategy on immigration should involve the highest echelons who can make decisions about US and global requirements.
Our clients’ employees crisscross the world, going from USA to China to India, or from India to Brazil to Switzerland and beyond. Their visa journeys need to be mapped and matched to product roll-out dates; manufacturing skill requirements; economic marketing cycles; and changing individual country visa regulations. Most nations are seeking to protect native workers’ rights; hence, foreign workers have to pass more rigorous tests to obtain work permits.
A company with several US business units, and with a rolling roster of demanding clients whose software products need to be completed timely and early, need to identify employees early to meet their goals. Our economic climate certainly dictates a live or die mentality.
Often companies think of the visa puzzle piece too late in the game: either when there is insufficient time to file, or when the need for a visa is urgent due to product rollout; however, at this point, visa quotas are often exhausted early in the year.
So how can an employer plan?
For US employment, the first step is to identify employees who are potential candidates for a new H1B visa. Either these persons are overseas or they are in the US, changing status from a non-immigrant visa to a new H1B, and are cap subject.
Employers must obtain their employees’ complete immigration history. History serves a dual purpose: both to identify potential workers who have no immigration violations, and to ascertain the nature and duration of other visa statuses that may reduce the amount of time an employee can validly spend on H1B visa status in the US.
Secondly, companies should determine a project’s actual start date in the US, so that visa dates can be tailored. If the employee is cap subject, they cannot start work until October 1.
What is the employee’s history?
While collecting an employee’s immigration history, also collect details of the employee’s experience in his/her industry, and educational qualifications for the position for which the future employee is being considered. This is to qualify the worker for an H1B visa in a specialty occupation, which requires a “theoretical and practical application of a body of highly specialized knowledge.”
Today, employers have global operations and often like to use their specialists in both the US and other countries. Most nations have a ‘work visa’ process, or an ‘intra-company transfer employee’ visa. Qualifying for this visa requires detailed employer information; as well as employee education, experience and travel document details. Even in the information age where exchange is instantaneous, filing for visas requires preparation and extra processing time if filing in a foreign system with foreign government requirements that do not match US processes. Natural disasters can also play a role: Hurricane Sandy took a heavy toll on Washington DC-based foreign visa processing units.
Plan, Plan, Plan. Start the immigration strategy process when the project is in the drawing board stage. Work with an immigration attorney to assist you in identifying visa requirements and timelines in the filing process. The result could be less costly and stressful, and you may actually enjoy the holidays this year.
See you in my next blog.
Nalini S Mahadevan, JD, MBA
Lowenbaum Partnership, LLC
St. Louis, Missouri
The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.
Copyright 2012. All rights reserved.
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