Hiring immigrants can be complex, but not impossible for small businesses

Though the process can be complex, there are still plenty of options for businesses of all sizes to hire overseas workers

(This column originally appeared in the Inquirer)

Want to hire someone for your company who is not a U.S. citizen? It’s not easy. But there are still plenty of options for businesses of all sizes to hire overseas workers.

“We have so many employers who are recruiting for a wide variety of positions, but they’re not seeing responses from U.S. workers to these job advertisements,” said Lindsay Eury, an attorney at Solow, Hartnett & Galvan, a Philadelphia law firm focused on immigration. “In these situations, employers are benefiting from hiring foreign workers who are taking on these roles.”

The most important step in hiring an immigrant worker is getting the right visa. Temporary workers who are specialists with equivalent college degrees in fields such as engineering or software development usually get work in the U.S. with an H-1B visa. Temporary agricultural workers or other employees without specialized skills get H-2A or H-2B visas. Someone with “extraordinary ability” may be eligible for an O-1 visa.

Then there are the companies that wish to sponsor an employee to work in the U.S. permanently. These workers would look to get a Permanent Resident Card (a green card) or apply for U.S. citizenship.

Employment-based — or EB — visas cover five categories of applicants, including “priority workers” and various types of skilled professionals.

Students already studying in the U.S. also may be eligible for visas, particularly if their work is in a STEM (science, technology, engineering, and math) field.

All of these forms can be found on the United States Citizenship and Immigration Services (USCIS) website, with instructions. Here’s some advice on how to navigate the system.

Get help filling out the forms

Eury said H-1B visas are the most common she sees, but getting an H1-B requires participating in a lottery that closes each March, so it’s really luck of the draw.

“Only 85,000 are available, and last year there were 470,000 applications,” she said.

Emily Cohen, a Philadelphia partner at immigration law firm Green & Spiegel LLC, said it’s critical to complete registration forms correctly, so a lucky lottery entry isn’t thwarted by a registration mistake.

“We have heard horror stories where employers make one little mistake on the registration, and they disqualify themselves,” Cohen said. “I’m not going to say an employer can’t successfully register on their own, but it’s important to consider having an attorney involved.”

Finally, if you’re lucky enough to win the H-1B lottery in March, know that your worker can’t start with your company until the following October, so plan ahead.

Make sure you’re paying a fair wage

One of the steps taken during many visa application processes is filing a prevailing wage form with the U.S. Department of Labor, in which the employer acknowledges a market wage based on the duties performed and confirms they will pay that wage.

“The employer’s going to have to pay that wage based on location as well as the job duties and requirements,” said Eury, noting that Philadelphia wages will need to be higher than Lancaster pay, for example. The USCIS also considers the size of the employer and whether the position is entry level or more senior, she added.

Clearly show a specific need for that worker

In some cases — like an H-1B application — employers must demonstrate that the position requires at least a bachelor’s degree and meets the definition of a “specialty occupation,” Cohen said.

The job must require “a specific or related degree,” she said. “The employer has to prove that the applicant is qualified and possesses qualifications that they’re unable to fulfill with U.S. workers.”

A different path for workers from Mexico and Canada

A special visa called the TN visa allows for temporary work without an H-1B visa, but it’s available only to Canadian and Mexican citizens under the United States-Mexico-Canada Agreement (formerly the North American Free Trade Agreement).

“In that situation, employers don’t need to enter a lottery,” Cohen said. But, she warned, this visa is usable only for a few dozen specific occupations.

Have a backup plan

Both attorneys stressed the importance of having alternatives in case the ideal employee doesn’t get through the highly competitive lottery. Eury recommends planning ahead and considering alternative visas if possible.

Cohen said some of her clients have opened remote offices in other countries in order to hire certain workers. “Of course, there are additional costs and considerations, but it may be worth it if the employee is that valuable,” Cohen said.

Both Cohen and Eury said immigration law has become much more complicated over the past decade, and the outlook remains uncertain in the current political environment. But that shouldn’t intimidate employers.

“I always tell small employers not to shy away from hiring immigrant workers,” Eury said. “Foreign workers can oftentimes provide a skill set to really help companies in the U.S. thrive.”

“But the process is very nuanced and constantly changing,” Eury added, “which is why it’s always important to work with an immigration attorney who knows what they’re doing.”