In Hot Job Market, Hiring Foreign Nationals is Easier and More Predictable under Biden

Matthew Kolodziej

With the demanding employment environment and difficulty finding qualified applicants willing to work, having access to foreign talent is more essential than ever. The Biden administration is implementing more streamlined and predictable processes for getting visas and work permits approved. Under the prior administration, there was an unpredictability when hiring foreign nationals and seeking the required work authorization in the U.S. Denials of work visa applications, such as the H-1B, increased so dramatically for some job categories employers filed a successful class action in Matter of Madkudu, wherein the immigration service (USCIS) agreed to reopen denials of H-1B visa applications for Market Research Analysts free of charge.

With the economy recovering from 2 years of the COVID-19 lockdown, the Biden administration has sought to reduce backlogs at USCIS, allowed for fast-tracking of more applications using their Premium Processing service, which promises a response within 15 days, and has relaxed certain visa and work permit requirements, particularly for foreign graduates with STEM (Science, Technology, Engineering and Mathematics) degrees. They have also more actively sought to balance USCIS’s workloads across all regional service centers to improve response times.

H-1B Skilled Professional Visa

These improvements present employers with a more stable and reliable possibility of using various visas to obtain needed talent. Options for employers include such visas as the popular H-1B temporary worker visa that permits foreign nationals with at least a bachelor’s degree to work in the U.S. for up to 6 years in a field directly related to their degree. While the standard first-time H-1B visa (cap subject) applicant must go through an annual lottery, which just closed in April, universities and related nonprofit entities, nonprofit research organizations, and government research organizations may sponsor foreign nationals for H-1Bs at will, without limit. Furthermore, for-profit employers may also hire foreign nationals who already have H-1B visas sponsored by other employers at any time without going through the lottery.

Optional Practical Training (OPT) and STEM OPT Student Work Permits

For the employment of young talent, there is always the 12-month optional practical training (OPT) work permit for F-1 student visa holders, which allows them to work for any employer in their field immediately after graduation. And for those in STEM fields, there is an additional 24 months of STEM OPT work authorization available. The Biden administration has increased the number of STEM fields eligible for the additional 24 month STEM OPT extension, which can be found here. If employers want to hire OPT and STEM OPT employees longer-term, they often choose to sponsor such individuals for the H-1B visa lottery each year while they are working on their OPT work permits.

L-1 International Transferee Visas

For international companies, the L-1A Intracompany Transferee Executive or Manager visa permits employers to transfer an employee from abroad to come to the U.S. to work as either a manager or executive. The L-1A is a non-immigrant visa which can be used even if the US entity is just starting – known as a “new office L-1A” – or for an already operating US branch, affiliate, or subsidiary. Whether a new or established office, the L-1A is valid for up to up to 7 years. For non-managerial employees with special skills, the L-1B visa is another option. Under the previous administration, employers were often asked for extensive additional documentation to justify the transfer of the employee, and processing times extended from 5 to 6 months or more. Under Biden, processing times and approval rates have improved.

O-1 Extraordinary Ability Visas

An increasingly viable option is the O-1 visa, especially for STEM graduates. The O-1 is a work visa for individuals who can demonstrate “extraordinary ability” in the sciences, arts, education, business, or athletics (or “extraordinary achievement” in the specific cases of the Motion Picture & Television industries). Eligibility standards are strict, but the Biden administration has stated that STEM graduates will now have an easier time qualifying for these special visas. O-1 visas are “temporary” nonimmigrant visas but may be renewed indefinitely. For example, our firm has had success with applicants with positions as skilled executive chefs, research scientists, film producers, marketing professionals and musicians, among others.

J-1 Exchange Visitor and Trainee Visas

A less common option, but one which we have had success with recently is the J-1 visa exchange visitor visa, which is meant to provide for cultural exchange for teaching, training, research, studying and related activities. The J-1 allows for a limited category of training opportunities with maximum periods ranging from 12 months to 5 years depending on the position. (5 years is generally limited to researchers in doctoral programs). These visas, though limited in duration, have the advantage of being uncapped, and available at any time.

Work Visas for Australians, Chileans, Singaporeans, Canadians, and Mexicans

Finally, there are the more limited non-immigrant work visa options available to certain nationalities. By country, these are:

Australia – the E-3 visa is a professional visa like an H-1B but is not subject to an annual limit or lottery and is renewable indefinitely in 2-year increments.
Chile/Singapore – the H-1B1 visa is another professional visa similar to the H-1B visa, but generally available at any time without having to win the annual H-1B visa lottery.
Canada/Mexico – the TN visas are for specific job categories under the North American Free Trade Agreement (NAFTA) and are valid up to 3 years and indefinitely renewable. While Mexicans must apply at a consulate for a visa, for Canadians specifically, the TN is potentially a very fast means of entering to work in the U.S. as it does not require applying for a visa and can be applied for directly at the border crossing.

In light of the Biden administration’s reforms to the visa adjudication process, improving timeframes and reverting back to the Obama-era adjudication standards and processing times, business immigration visas are once-again a faster and more reliable means for employers to obtain skilled talent. In the high-demand market, the expansion of faster processing and more reliable decisions is a much-needed relief to the dearth of skilled job seekers in the market and human resource departments should be encouraged to consider the many options available to them for hiring talent from abroad.