Hiring foreign workers has become more difficult. These options still exist. | Expert Opinion

Employing foreign workers is more difficult than ever. But it’s not impossible.

A Philadelphia employer can potentially secure a Canadian engineer in a matter of years. But hiring a similarly qualified worker from India could take decades.

“It’s not easy for business owners to recruit or target these individuals that they deem essential to their operations because of current immigration policy,” said Alex Isbell, an immigration attorney at Palladino, Isbell & Casazza LLC in Philadelphia. “If a company wants to hire someone from overseas they’re going to have to overcome some pretty big challenges.”

The Trump administration wants American companies to hire more home-grown workers. And the rules have changed to encourage this.

Until recently, the best way to bring in workers from overseas has been the H-1B visa, a temporary U.S. work visa program that allows American employers to sponsor and hire foreign professionals in specialty occupations and jobs that typically require at least a bachelor’s degree in a specific field. The federal government has historically issued tens of thousands of these three-year visas annually through a lottery for companies that could prove technical need.

But last year the Trump administration began clamping down on these visas by instituting a $100,000 fee on companies applying. And recently the administration announced a higher wage barrier for companies looking to hire foreign workers.

As a result, applications for these visas have dropped 27% in the past year.

This past week a federal judge stayed the fee as unconstitutional, but the administration plans to appeal this decision. Natalia Gouz, an attorney with Philadelphia-based Klasko Immigration Law Partners LLP, is hoping to see the fee reduced or eliminated.

“Most of our clients are not really able to invest that kind of money, because that could be more than a salary,” she said. “The fee makes things much more challenging to hire someone from overseas.”

There are other options for employers who want to avoid the H-1B process. That’s because current U.S. immigration policies favor the hiring of employees from some countries over others.

Hiring a Canadian worker vs. hiring someone from India can be a dramatically different process, said Jonathan Grode, U.S. managing partner at Green & Spiegel in Philadelphia. Citizens of Canada, Mexico, and Australia may qualify for special TN and E-3 visa programs tied to existing trade agreements that are generally faster and less expensive than traditional employment visas, he said. Chile and Singapore are also good places to look for workers because of favorable trade agreements.

“The process is much easier for these countries,” said Grode. “For a Canadian with a bachelor’s degree, if I was to apply for a green card today, the full start-to-finish wait time would take about three years. But unfortunately, if you’re an Indian national the same process is estimated right now to be 40 years.”

No, that’s not a typo. According to Grode, because India lacks the trade and investment treaties that benefit some other countries, employers often face fewer visa options and extremely long green-card backlogs.

But there are still more options.

The O-1 visa is reserved for individuals with “extraordinary abilities’” and is not subject to annual lotteries. The EB-1 is a permanent residency (green card) category for those workers, which also includes “outstanding” professors and researchers or multinational executives and managers.

“Those are not subject to quotas, availability, or the $100,000 fee,” said Isbell. “But they’re difficult to receive.”

To get one of these visas, Isbell said, “A person has to be, as the regulation says, one of the very few in their field who’s risen to the top. You have to be a very high achiever, and you have to have been a very high achiever for a long period of time.”

One overlooked source of talent is international students already studying in the United States.

According to Gouz, these students may be eligible for an Optional Practical Training (OPT) work authorization and can begin working immediately once they have it. Employers can hire an OPT worker without the H-1B lottery process. Most graduates receive 12 months of OPT and many STEM graduates can receive an additional 24-month extension, providing up to 36 months of work authorization.

“Employers still have obligations, including signing off on the worker’s responsibilities, as well as reporting responsibilities,” she said.

It sounds daunting, and yes, the process has become much more difficult for employers. But immigration attorneys like Gouz say not to assume that hiring a foreign worker will be impossible. And — just as importantly — once a foreign worker is hired it’s critical to stay up to date on compliance in order to keep that worker.

Gouz recommends investing in an experienced immigration attorney and maintaining complete employment documentation including the I-9 Employment Eligibility Verification form, maintaining proper records, and training staff responsible for verifying employment. Using the federal E-Verify platform — a free, internet-based system operated by the U.S. government that allows businesses to electronically confirm the legal employment eligibility of their worker — is helpful, but not a substitute.

“If somebody is presenting documents that don’t belong to them, E-Verify is not necessarily going to catch that,” Gouz said.

It’s important to keep up-to-date I-9 forms for all employees, Gouz noted. And employers must make sure each worker’s occupation lines up with the approved jobs for their type of visa, and continues to qualify for that program.

“The system is really hard to navigate right now,” Grode said. “You can really step in it if you’re not careful.”