H-1B and Beyond: What are the Options for Hiring Foreign Nationals?

With U.S. manufacturers facing more than 800,000 vacant jobs, companies are re-focusing their efforts on building their workforce. Foreign nationals can help fill the workforce gap.

Manufacturers can sponsor foreign nationals in a variety of different work-authorized status categories, each with its own requirements and limitations. Here is a rundown on the most common classifications.

1. F-1. Foreign nationals attending an accredited college or university in the U.S. are eligible to obtain work authorization during their full-time academic program and once their degree program is complete.  In fact, students who obtain a STEM degree are eligible to obtain up to three years in work authorization.

2. H-1B. The H-1B category can cover a wide variety of professional positions, ranging from engineers to operations managers, among others.  Unfortunately, the number of foreign nationals who can obtain first-time H-1B status (i.e., students who graduated from a college or university or those who are currently working abroad) is limited to 85,000 per year, with 20,000 spots reserved for those who have obtained a master’s or higher degree from an accredited college or university in the U.S. 

The H-1B classification is widely used for foreign national employees, as the requirements allow for most professional positions to be included and  a foreign national from any country can potentially qualify, so long as the criteria are met.  In particular, a company may sponsor an H-1B candidate if the position requires at least a bachelor’s degree or its equivalent in a specific specialty (i.e., a foreign equivalent degree or equivalent work experience).

For H-1B candidates, timing can be a challenge, as the U.S. Citizenship and Immigration Services (USCIS) only accepts petitions for H-1B status once per fiscal year. If an individual is already in H-1B status with another employer, however, manufacturers can sponsor that individual and have his/her H-1B status “transferred” to the new company (assuming that the new position qualifies for H-1B status). This requires a filing with the USCIS to reflect the new company sponsor and the new job position. It can be done relatively quickly—in fact, once a new H-1B petition is received by the USCIS for a foreign national who is already in H-1B status, that individual can begin working for the new company without having to wait for formal approval.

If a manufacturing company cannot pursue H-1B status for a foreign national worker – for example, because the individual has never been in H-1B status and the H-1B quota already has been met for that fiscal year – there are still other options. For instance, there are certain treaties the United States has entered into with other countries that allow nationals of those countries to qualify for specific work-authorized categories in the U.S. and, in many circumstances, allow for a more streamlined application process. Two of these categories are H-1B1 and E-3, which are very similar to H-1B but are reserved for citizens of Singapore and Australia, respectively. The overall requirements are the same as for H-1B.

3. TN. The TN category is available only to nationals of Canada (TN-1) and Mexico (TN-2).  The United States-Mexico-Canada Agreement (USMCA), formerly NAFTA, allows Canadian and Mexican citizens to obtain temporary entry into the United States to engage in business activities at a professional level.  Unlike some other work authorized categories, however, the USMCA only covers specific occupational categories, which means an employer cannot sponsor a Canadian or Mexican national for any professional job; it must be a job classified in one of the enumerated professional occupational categories. However, the eligible occupation categories are fairly general and include professions such as computer systems analysts, engineers, and industrial designers, among others. While most of the TN categories require an individual to possess a related bachelor’s degree, TN status is also available for a few occupational categories that do not require a professional-level educational background.

4. E-2. The E-2 category allows manufacturing companies whose parent company is headquartered in a country that has a treaty with the U.S. to sponsor nationals of that same country for work authorization in the U.S. To qualify for this category, the foreign company must be investing a substantial amount of capital in a U.S. business and the prospective employee either has  special qualifications that are essential to the company’s operations in the U.S. or will serve in a supervisory capacity. For example, a French national coming to the U.S. to serve in a supervisory role with a U.S. company ultimately owned by French nationals can apply for E-2 status.

5. L-1. U.S. manufacturers with a global footprint (i.e., companies with affiliates, subsidiaries, branches, or a parent company in another country) can also avail themselves of the L-1 category, which is designated for intra-company transferees and allows U.S. manufacturers to bring over employees of an affiliated foreign company. The L-1 category is divided into two separate statuses to reflect two different types of occupations: the L-1A, for managers and executives, and the L-1B, for individuals with specialized knowledge.

To qualify for the L-1A, an individual must have worked abroad for a company related to the U.S. employer for at least one year in a managerial or executive position and must be coming to work in the U.S. in a managerial or executive position. For managers, there are two ways to qualify: either as a personnel manager or a functional manager. Personnel managers must primarily supervise and control the work of other supervisory, professional, or managerial employees, whereas functional managers must primarily manage an essential function within the organization at a high level. 

The L-1B category, on the other hand, is for individuals who have worked for a related company abroad for at least one year in a position in which they have gained specialized, proprietary or advanced knowledge about the company’s processes, methods and procedures, and who are coming to the U.S. to implement the specialized knowledge gained abroad.

Manufacturers have many options to secure top talent for their organization. Immigration counsel can help companies navigate the most appropriate work-authorized immigration categories for their potential foreign national employees.

As an associate in Robinson+Cole’s Immigration Group, Jennifer Shanley focuses her practice on U.S. immigration law, with an emphasis on business immigration matters.