The tech industry in the United States plays a critical role in determining economic growth. At the same time, the current unemployment rate in the U.S. is 3.7%. As the tech industry continues to sprawl into the uncharted territory of innovation, there is a growing demand for workers. But getting the visas required to bring in the necessary people to fill jobs is no simple task.
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H1B approvals have declined over the past several years, and the number of Requests for Evidence (RFEs) has doubled. The Department of Homeland Security (DHS) is committed to enacting more regulation to limit H1-B visa qualifiers.
There are two types of Green Cards that the H1B can lead to:
Both the EB2 and EB3 require that the American company recruiting the individual go through the Labor Certification Process (discussed below).
It is a challenge to show that an individual has become one of the best in the industry, especially if they are brand new to the industry. Media coverage, scientific and trade publications, and patents, among other things, can be used to demonstrate extraordinary ability and even define an industry.
In reviewing L1 and EB1-3 petitions, USCIS takes into consideration such crucial elements as the relationship between companies, the size of the company, the job level of the transferring employee, and the number of employees. Unless the L1 employer is already well-known (e.g., Coca-Cola), it is often necessary to provide in-depth documentation about the company to meet standards and requirements such as the number of employees and a credible business plan.
A common issue that arises for these types of visas is when the executive who needs to be brought over is the owner and has 100 percent of the company. An effective strategy to resolve this matter is to establish a board of directors and create employment agreements to indicate that the person is an employee who can be fired. This strategy can only be successful when done correctly.
The Labor Certification Process shows that the hiring company has tried diligently to hire an American first. There are specific ways that the job(s) need to be advertised. The want ads cannot be specifically tailored to an individual; it needs to be similar to typical industry requirements. Looking at want ads from other companies is useful in this process.
Next, there is the Specific Vocational Preparation or SVP. The SVP is the “amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation (link).” For instance, a computer engineer position may require a bachelor’s degree plus two years of experience or a master’s degree.
There also needs to be some consistency for the SVP in the want ad. A red flag might be triggered if a specific position required a bachelor’s degree in the past and then suddenly 10 years of experience wanted.
If there are any Americans or Green Card holders who come forward in response to the want ad, the company does not have to hire them. By the same token, the company cannot hire the foreign national. However, the company would be able to hire the foreign national if they also hire all of the Americans and Green Card holders that are seeking that position.
The Labor Certification process is a lengthy process with wait times that depend on the individual’s country of origin. Since there are a lot of people entering the tech industry who are from India and China, the wait can be up to ten years for people from those countries.There is a caveat: if the EB2 or EB3 is filed before the end of the fifth year on the H1B, the individual can perpetually extend the H1B visa. In this situation, people are forced to stay with the same company to retain their place in line. If the individual decides to switch companies, they must start the entire process over.
About the author: Jon Velie has practiced Immigration law since 1993. He is CEO of OnlineVisas.com., the intelligent Immigration platform. Jon is an Amazon number one best-selling author of H1B Visa: Application & Approval, is regularly covered by major media and has won a number of international awards. Jon can be contacted at email@example.com or 405-310-4333 office or 405-821-5959 mobile.