The current state of affairs on hiring skilled foreign workers in the U.S under the Trump Administration

Two Contrasting Forces are Making it Almost Impossible to Recruit Skilled Workers: The Hyper-Competitive Job Market and the Trump Administration’s Hardline Immigration Policies.

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Immigration Law For Recruiters – H-1B and More

INTRO:: [00:00:00] The TotalPicture podcast is an on demand talk radio show designed to help accelerate your career by connecting you to keynote speakers, best selling authors, and leaders in Talent Acquisition recruiting HR and TA tech. I’m your host Peter Clayton. I attend many important industry conferences to bring you current trends, critical information and insights.

Peter: [00:00:22] Welcome to a special Talent Acquisition Channel podcast here on TotalPicture. According to my guest Nathalie Gottschalk, an immigration attorney based in Las Vegas, Facebook spends an average of about $14,000 in net visa costs alone for each employee successfully recruited via the H-1B visa program. April 2nd was the first day this year the United States Citizenship and Immigration Services (USCIS) accepted H-1B visas for the quota for fiscal year 2019 — commencing October 1st 2018. Because the demand for H-1B workers remains incredibly high, the quota was likely filled in the first five business days of April. Last year USCIS received over 230,000 H-1B applications for 85,000 slots. As anyone working in HR and recruiting will tell you, the Trump administration is more aggressively scrutinizing visas granted to skilled workers from other countries. Additionally Trump is contemplating ending the provision that allows spouses of those skilled workers to be employed here in the United States.

Peter: [00:01:34] If you’re trying to recruit highly skilled talent for a small or medium sized business it’s hard to compete with Facebook, Google, Amazon, Apple, Microsoft and other large organizations of competing for an H1-B visa. However, there are alternatives which we will discuss in our podcast today with Nathalie. Nathalie, thanks so much for taking time to speak with us today here on TotalPicture on this really important topic of immigration and how people from other countries can come and work in the United States. So first of all can you just tell us a little bit about your background and your law practice and how you decided to focus on immigration law.

Nathalie: [00:02:15] Thank you so much for having me Peter. Yes indeed it is a very important topic. My background is a little bit complex. I was I was born in France but my parents were Ecuadorian so they moved back to Ecuador when I was still a toddler and I grew up there when I was a teenager. I came here to the United States and I went to college here and then I decided to go to law school at the University of Utah. And from then I decided to focus on practicing immigration, because of my language skills and because of my diverse culture. And I felt that I could connect to the client. I can speak the language and I can understand what they went through — what they have to go through the process. So I started after law school I worked for a medium firm here in Las Vegas for about ten years. I started practicing immigration but they were also getting me cases like civil litigation some criminal and family litigation. And family law. My interest kept growing on the immigration part of the practice and so after 10 years I decided to just open my own practice and only focus on immigration law. I mainly do business based immigration and family based immigration. Now there’s a lot of other practices like asylum, refugee there’s removal and deportation. So it’s pretty broad immigration but it’s already complex for me so I just decided to focus on those two me areas business and family.

Peter: [00:03:57] So we’re going to mainly focus on the work side of this although we will get a little bit into the family side too because I think most of them are are certainly related to a certain extent. But I want to start out Nathalie by talking about the H-1B visa program which obviously started for the 2019 period April 2nd of this year. And I’m sure by the time this airs that is going to — the quota is already going to have been hit for for that period. So first of all can you tell us a little bit about the H-1B visa program what it is and a little bit of its background.

Nathalie: [00:04:41] Ok so to be simple and not boor any anyone. H-1B is a program reserved for temporary workers. OK. And for the workers that have specialty occupations. Specialty occupations is a term of art, but to make it simpler it’s reserved for people for engineers, doctors, lawyers, accountants, architects. Those are the main occupations. But there are other occupations where if you can show that it’s complex and highly specialized and requires highly specialized knowledge and as a minimum requirement you need a bachelor’s degree or higher. You can argue that that’s a specialty occupation. And at the beginning you could get a worker for the first three years and then later if you want to extend their contract or they want you want them to stay in your company you can extend that are another three years. So Congress issues visas every year and there’s an annual cap of 65,000 visas each year. Those are the regular bachelor’s degree or higher. If you have an advanced degree like a master’s degree then there’s 20,000 visas available for those people with master’s degree or higher. So that’s basically the gist of what it is.

Peter: [00:06:01] Ok. From what I understand last year there were over 230,000 applications for H-1B visas. Obviously with only 85,000 available, it’s very very competitive. And you had mentioned to me something about Facebook spending approximately $14,000 in net visa costs alone for each employee. Right?

Nathalie: [00:06:27] Yes.

Peter: [00:06:27] So can you expand on that a little bit. I mean that’s that’s a lot of money to have to spend to bring one employee into your organization. And there’s not a lot of companies out there that are that have the deep pockets of Facebook or Google or Apple to do that.

Nathalie: [00:06:41] Yeah. So basically there was data released by the Migration Policy Institute. So all of this is available you know in the public domain. So Facebook is it’s an employer that is dependent on H-1B visas. What is what does it mean when you go into each one be dependent? It means that a percentage of your workforce in the U.S. has an H-1B visa. So if you have more than 50 employees here in the U.S. and 50 percent of that workforce is on H-1B visa then your a dependent employer. So Facebook is a dependent employer and so because of that you have too many a lot more hoops, and you’re finding these are substantially more than a regular employer. For example they they’re filing fees — if you’re a dependent employer filing fees are 4,000 dollars more per applicant than if you were not a dependent employer that for them is like — so without attorneys fees and all include a regular employer will spend about $6,000 per applicant. But if Facebook will spend like $9,000 per applicant. So, because of their dependency on the H-1B program. So basically they basically did over 3.700 applications last year and only like 1,600 plus like 1,566. Thats what they said were accepted and so if you multiply that interest in average it out with like $13,769. So to round it out is $14,000 that they spent trying to accept that each H-1B application. And that’s conservative because I didn’t include any fees that you have to pay for any requests for more additional evidence that USCIS is pushing into every single employer which requires a lot more work to respond to those. So Facebook, yes. Facebook spends that amount of money but there are other big companies like Microsoft and Apple, Google, Amazon, that those are the top 20 employers that submit a large amount of H-1B applications per year.

Peter: [00:08:50] Would you agree that it’s large well-known companies like the ones we’ve been discussing with the deep pockets that have the best chance of winning this crazy lottery?

Nathalie: [00:09:01] Yes absolutely. A lot of small employers are saying is it even worth it for us to even try? You know some are. Something is is worth it but businesses say well I have to spend all this — mean the more applications you send them the like more like they could get you to get into the lottery but I just don’t know whether that’s worth it for the small employer.

Peter: [00:09:25] Wow. And of course now with this administration which is very very hardline on immigration, how has that impacted your business and the ability of employers to bring immigrants into this country to work?

Nathalie: [00:09:45] So I had a lot of of my clients that are smaller employers that are telling me well there is no way I can submit 3,700 applications, obviously and I just want to make sure that the work I need is able to work for me starting this date. And I cannot rely on the lottery for me to bring this worker because I just need it. It’s the need, right? So they’ll be asking me well what are the alternatives.

Nathalie: [00:10:15] Well the other than an H-1B I know for sure that this person what we have a high probability that this person is going to be who I need it. When I need him or her. So there’s alternatives that you can you can discuss with your attorney and for example there’s the H-1B-1 visa category which is reserved for people of the Nationals of Chile and Singapore. And they’re also reserved for specialty occupations. But it’s so much cheaper and they’re subject to the cap because out of the 65,000 I mentioned before about 6000 are reserved for Chile and Singapore. For the Nationals of Chile and Singapore. But as far as I’m concerned out of the last 14 years that I’ve been in practice, it hasn’t been reached — the cap hasn’t been reached, so there’s always availability. So I have told the employers well you want to recruit go and you know recruit people in Chile and Singapore and try to see whether they’re interested in and coming to the United States and working. So that you don’t have to go through USAA and you don’t have to pay those fees that are applicable to every employer. If you can if you can have them go through the consulate, and that’s a couple of hundred dollars for fees for the visas and the attorney’s fees, obviously. But it’s not — As of now it’s not subject to the lottery. So that’s one option that you can have. Another option would be trying to recruit any workers from Mexico and Canada. It’s called a TN. It’s based on the NAFTA agreement. So I know that..

Peter: [00:11:47] long as that’s still active, right?

Nathalie: [00:11:48] Well it it is still active as of today. So that’s still an alternative because it’s not subject to that it’s not subject to a cap and not subject to… So it’s basically you have to show that this person has a degree, most occupation. So there’s a list of occupations that are qualified to you know to get this kind of TN visa and most of them do require a bachelor’s degree but some do not. For example there’s a computer system analyst that requires you know a high school degree plus three years experience you know that person doesn’t have a bachelor’s degree there is a management consulting occupation there’s a scientific technician or technologist who doesn’t have to have necessarily a bachelor’s degree but some schooling and experience. So there’s some — It depends what you need. Again, there’s an option there. And finally there’s also the option of people from Australia. Again also specialty occupation there’s a couple 10,000 visas per year. And you know it is never been. So there’s still that option for the employers that want to do like internships trainees to test whether this employee is you know whether it’s worth it for this person to to to work for your company there’s a J visa program where it’s available for teachers, physicians, trainees, interns. But there’s lots of programs that you can choose from and that the applicant has to have you know some kind of degree from abroad in seeking to gain experience you know here in the United States within an employer.

Peter: [00:13:27] So this is all managed through the United States Citizenship and Immigration Services which falls under Homeland Security.

: [00:13:37] The H-1B-1 you could get the persons who were here and doesn’t want to return home to get a visa. Most of these visas you don’t have to deal with USCIS you can deal directly with a U.S. consulate. And that’s the advantage. Yes that’s the advantage you don’t have to deal with USCIS taking six months to process your case. And you know what you have the option of paying $1,200 to expedite. Right? But it’s more expensive obviously and sometimes USCIS suspends the expedited option for example right now under the expedited option over processing your case within 10 business days. They said they suspended that day. We don’t know when exactly they’re going to have that option with the employer. So you don’t have to wait until it USCIS processes your case you just go straight to the consulate and present your case to the consulate and then your employee could just enter the U.S. with a visa.

Peter: [00:14:33] And so how long does that take Nathalie, if I go to the consulate and I have all my paperwork for that to get processed.

Nathalie: [00:14:41] A couple of weeks.

Nathalie: [00:14:42] So, mostly is the preparation of the case, right? Takes when once your employer gives you all the information not all of the you know the transcripts the degree the resume and all that, just takes a couple of weeks for the attorney to repair it send it to the consulate and then you go. So you know it just takes a week or two to schedule an appointment with the counsellor depending on how busy they are. So it’s a huge difference. It makes a huge difference.

Peter: [00:15:09] No kidding. So if I’m a recruiter and I’ve identified someone who is a perfect fit for my company what’s the procedure then what do I need to do to get the paperwork processed and prepared for that individual to go to the U.S. consulate in their country in their home country. Start that process?

Nathalie: [00:15:36] OK so if you let’s say you found a person in Chile that Or it or the person is here. OK but most of the people that you know that I suggest that you recruit people already in Chile. And you know they would like to to to work for your company. The only thing you need to do is really get their degrees. You need to evaluate the degrees here to make sure that their degree in Chile is equivalent to a bachelor’s degree here in the U.S. and then you have to do Labor application. With the Department of Labor saying that OK you’re going to pay this person prevailing wage in accordance with you know the statute and if that person has for example require a bachelor’s degree plus two years experience you have to pay that person what a normal worker with similar skills are paid. So you have to attest that to the Department of Labor and then you give them a job offer where you can tell the counselor OK I’m going to offer him this amount of money. And so the initial the initial visa is 18 months. Which you could keep extending. And basically the person has to have a passport and you know they going to go to criminal records and whether this person has been here illegally so that it’s rare that I can’t do that because they’re professionals so they’re mostly law abiding. No they’re not. They’re not. They don’t have any criminal record. You know they have an education. So very rare that I find a person that has a criminal record you know. Applicant takes all that paperwork to the consulate and they process it and that’s it. And then they the council takes a couple of days so that we should the visa. And they could just enter and start looking.

Peter: [00:17:25] So what if I found a candidate in Mumbai India who I want to hire.

Peter: [00:17:31] Is that the same process the same amount of time?

Nathalie: [00:17:31] No from Mumbai and who is a national of India. That person has to go through the H-1B lottery. If that person has not been granted a visa within the last six years. So let’s say you find a candidate here from Mumbai but is already on an H-1B and this person wishes to switch employers you can certainly hire that person and you can change employers that you can notify USCIS that you know this person is no longer working for employer A now he’s working for employer B. He has filed a petition. That person can start working.

Peter: [00:18:14] Is that because there are so many people from India that are already in this country is that why that…

Nathalie: [00:18:20] It could be any any person that is already here on H-1B visa that is could transfer.

Peter: [00:18:25] But what I’m asking is since the only way someone who is currently in India can come into this country and work is with an H-1B visa is that because they’re not of a preferred status. The countries that you mentioned like Canada and Mexico and Chile the only ones that are you can use for this consular status and bringing into the country?

Nathalie: [00:18:54] Yes. So those are the people that you know the U.S. has an agreement with that specific country which makes it easier for those people because of this agreement a bilateral agreement to enter the U.S. without having to go through what the rest of the world will have to go through you know. And and yes. A lot of national from India are the recipients of H-1B’s and this is why especially on the tech industry. But all of them have to go through the lottery unless you already went to the lottery you would get paid. And then all of a sudden you wish to switch employers which happens because sometimes employers do want to offer them permanent residency. So in that case you could keep extending their stay every three years if you have already you know have a Permanent resident application pending. And the people from India have to wait a decade or more in order to have a green card. You could keep extending their stay until that visa, Immigrant Visa becomes available. So you can keep extending every three years. You know the people from India the people from Philippines and China are — Their backlog their in the backlog because there are so many applicants and there’s so many of visas alluded to those people with those nationalities that sometimes they have to wait years before they can apply for a green card. So they just have to be on standby. They can keep renewing their visa, their H-1B visa as long as they have an employer that is willing to sponsor them. Until their visa becomes available and they can apply for permanent residency.

Peter: [00:20:32] At the beginning of this interview and my open. I stated that the State Department has ended an Obama era program to grant visas to foreign entrepreneurs who want to start companies in the United States. So is there any — I know a lot of people personally who have done exactly that. Who have had financial backing who’ve come into this country and have started companies and been very very successful doing that. So is there any alternatives that you’re aware of for these entrepreneurs who want to come in here and start companies.

Nathalie: [00:21:15] Yes there an investor visa. What is called a V2 visa and E1 if you to trade. But most people don’t want to be the one to start a business. You can do that but you have to show that you put your money at risk and your money has to be substantial the amount of investment has to be substantial. And this statute doesn’t define what substantial is. It is not a number out there in the statute that said that you have to invest in order to qualify. It really depends on what kind of business you want to start because you want to start a restaurant a different amount of money to be invested than if you want to do you know. So there are different amounts. You have to show that your amount that you going to invest substantial. And that you’re going to hire U.S. citizens to you know. You know you would just open your business and you’re going to — Just you’ll be the only employee. That’s not what the E2 vias was meant for.

Peter: [00:22:14] Right.

Nathalie: [00:22:15] The E2 visa it’s meant was meant for you doing an investment you you’re going to hire people in order to create jobs basically. And also the people that are, that are able to apply for those. And of course it is also subject to whether your country signed a bilateral agreement with the U.S. and most countries have. So before and you want to invest in have to see whether your country has signed a bilateral agreement with the U.S.. That will qualify you to to have this visa.

Peter: [00:22:46] And I’m glad to hear that program is still active because again I I’ve met so many entrepreneurs and an example Jerome Ternynck who started SmartRecruiters. Came here from France to San Francisco a very successful company. He has hundreds of employees now you know so it’s really worth it to allow these really smart entrepreneurs to come in here and start these organizations and these businesses right?

Nathalie: [00:23:19] Right. I agree with you.

Peter: [00:23:21] Ok. So I’d like to shift gears for just a minute. Let’s say I’m here on a student visa and I’m going to graduate this spring from the University of Utah and I’d like to stay here in the United States and get a job here. So what are my options if any. And what do I need to do.

Nathalie: [00:23:40] Ok so if you’re a student that is graduating and you have the option of applying for an optional practical training so that will give you the opportunity to work with any employer for 12 months in your field. Ok. And so then you can talk to the employer to see whether they want to sponsor you or not. If you think that oh well you know I’m scared that I’m not going to make it to the lottery because I have to apply for an H-1B. There’s an option of work or getting a job with a, with an employer that is not subject to the cap. And those are the universities those are the nonprofit organizations that are associated with universities. It could be a government agency or research research nonprofit. So those employers are not subject to the cap and they don’t have to go through the lottery in order to get an age when the applicant. Those students that have STEM fields could extend their practical training for another 24 months. So that extends even more your time here in the U.S. getting experience and getting more skills to be more marketable and getting a job. So I would say try to get into the field of STEM field. A master’s degree or a bachelor’s degree. That way you have the most the maximum amount of time here trying to work for an employer that likes you. And that we like to sponsor you.

Peter: [00:25:10] How much does it cost approximately to be able to do that as as a student. What’s what’s the paperwork you have to fill out.

Nathalie: [00:25:18] Normally the is the university that that does it so fast when a student comes here they have to show that you know you can afford to pay for your tuition and room and board. In that way the university could fill out normally all the paperwork and they send it to the consulate and the consulate will be issued with Visa and as long as a person is continued to study and attend school, this person is in perfectly good status until this person graduates and then you can apply for this training either before you graduate or after you graduate it’s up to you. But you know the time it does not extend that is a fixed time and you have to choose wisely when you want to use it either before you finish school or after.

Peter: [00:26:02] Well this is really been informative. Thank you so much for taking time to speak with us today you’re on TotalPicture what haven’t I asked you that you’d like to share with our listeners?

Nathalie: [00:26:13] Well you know there’s there’s a lot of other strategies that you can do. There are some workers that have there H-1B right now that would like to stay longer but the employer is not willing to sponsor. And you can offer them a permanent residency which is a three step process. You have to go to the Department of Labor if you can show that there’s no other worker available with a job, then this person is eligible to get a labor certification. After that you go to the USCIS to approve the petition based on your need and your ability to pay. And then later once that’s approved you can just go to the consulate to get a green card or you can process it here in states. The process could take about a year but it’s not subject to the lottery is subject to whether you can you are able to recruit find the person that could do the job and get that foreign person that that that you like and you can show that there’s no other eligible workers out there you can you can opt to that and then you can try and recruit a worker that would like to stay and you can offer that option of doing what is what is called the perm, or permanent residency. So if you’re a small employer that cannot afford to pay large sums of money attorneys fees there are some attorneys or small firms or solo attorneys like me that will offer a way to work with that employer. We have reduced expenses like overhead is low so we were able to offer payment plans to the employer or money back if the case is not approved. I offer half of the retainer back if the case is not approved in that way the employer doesn’t feel like oh my god this is so expensive to bring a worker that I need in order to help me help with my business. So there’s definitely options there that you just have to know what nationality makes sense based on the cost and the time. And so you just have to be informed in that way you can recruit better based on that information you have.

Peter: [00:28:18] So I just want to go back and so I understand one thing when someone has issued an H-1B visa is for what three years is that…

Nathalie: [00:28:28] Yes. So that’s the initial period. Three years. But after that you have to reapply. You’re not subject to the lottery that you have to extend their stay if you wish them to stay in your company. So the costs remain. You know you still have to after three years you have to re-file.

Peter: [00:28:43] Which is what keeps the HR departments and all of these tech companies very busy.

Nathalie: [00:28:49] Exactly. Well now with that with so much inquiries and pushback from the administration we’ve been very very busy trying to respond to all of these additional requests for evidence you know, with the cases have been already been granted but that doesn’t matter anymore. Now they even if the case had been with it for several years that administration could request more evidence. On anything that they know that they feel that you know there is there’s more questions to ask. So employers have been — this has been very burdensome and them a very burdensome process and expensive.

Peter: [00:29:26] Now we have a trade war.

Nathalie: [00:29:36] Hopefully it’s going to be okay.

Peter: [00:29:39] Again Nathalie thank you very much for speaking with me here on TotalPicture. How can our listeners connect with you?

Nathalie: [00:29:46] Yeah so they can go to my Web site LinkedIn as well so they can send me a message and you know I’ll answer any question they have.

Peter: [00:30:00] I appreciate that. That’s our show. Your comments are welcome. Nathalie’s feature page in the Talent Acquisition channel of where you’ll find show notes and resource links. While there please sign up for our free newsletter. You can subscribe to TotalPicture on iTunes and Google Play and join the conversation on our TotalPicture Radio Facebook group. You’ll find me on Twitter @peterclayton. Thanks for tuning in.

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