Vice President, Immigration Policy, U.S. Chamber of Commerce
November 12, 2021
American businesses are in the midst of the biggest labor crisis ever, with more open positions than there are available and willing workers to fill them. Business leaders cite the worker shortage as one of the primary obstacles standing in the way of not just their own financial recovery from the pandemic, but also that of the economy writ large. To be sure, instead of workers flooding the market, the labor force participation rate is actually declining.
Along with programs and initiatives to upskill and reskill U.S. workers, we need to bring more foreign talent into the workforce. While many media headlines have focused on the H-1B visa program as a potential way for businesses to find the skilled talent they require, there are many other visas available to meet their workforce needs. In the absence of available homegrown talent, these programs may be the best option businesses have to onboard workers quickly.
Below is a breakdown of four nonimmigrant visa programs businesses leaders should know about, and the distinct rules and regulations governing their use.
Treaty Trader (E-1) and Treaty Trader (E-2) Visas
What are they: These visas help facilitate international trade and foreign direct investment between the U.S. and countries that have entered into treaties with the U.S. They are only available to foreign nationals of a country where a Treaty of Friendship, Commerce, and Navigation (FCN) or a Bilateral Investment Treaty (BIT) exists between the country and the U.S.
Who do they help: These visas help companies with significant foreign ownership interests that conduct substantial trade and investment between the U.S. and countries that have entered into a requisite treaty with the U.S. Specifically, a prospective worker must be a national of a treaty country, and the individual’s nationality must be the same as the majority owner(s) of the company hiring him or her.
Who can get them: The principal treaty trader/investor can obtain these visas. In addition, prospective workers at the firm are eligible for an E visa if they will be a key employee who is an executive, manager, or an individual with specialized/essential skills or knowledge of the company, which must be conducting substantial trade (E-1) or substantial investment (E-2) in the U.S.
What makes them unique: E-1 and E-2 visas lack an annual quota on the number of nonimmigrants that can be admitted to the U.S. There are also no limitations on the worker’s ability to extend their stay in the U.S. The worker may also be able to file an immigrant visa petition if, in the future, they decide they want to work in the U.S. on a permanent basis.
Seasonal Workers – H-2A and H-2B Visas
What are they: The H-2 visa programs are designed for companies seeking to fill temporary, seasonal labor needs. The H-2A program is for agricultural employment, whereas the H-2B program is for non-agricultural employment.
Who do they help: H-2A visas help American agricultural producers meet their workforce needs to help feed our nation and the world. H-2B visas help various industries that struggle to find enough workers to help their businesses grow and be productive during their most busy seasons of the year, including hospitality, landscaping, seafood production, restaurants, forestry, mobile outdoor amusement, and golf courses, among others.
Who can get them: Businesses in desperate need of workers can only obtain H-2 visas for prospective employees if they actively recruit Americans for the job and are unable to fill their open positions. Companies must obtain a temporary employment certification from the Department of Labor showing that they actively recruited American workers and were unable to find enough American workers to meet their needs. In addition, the federal government also restricts where employers can seek potential H-2 workers, as it makes an annual determination as to which country’s nationals are eligible for these visas.
What makes them unique: Both programs have very stringent recruitment and prevailing wage requirements that must be met to ensure these guest workers are not harming similarly situated American workers. The H-2A program does not have an annual fixed quota, while the H-2B program has an annual quota of 66,000 visas. Due to the temporary and seasonal nature of the employment needs, a worker’s length of stay on an H-2 visa will never be more than 3 years, but the length of stay is determined by the Labor Department’s certification, which oftentimes is less than a year.
Intracompany Transferees – L-1A and L-1B Visas
What are they: These visas allow U.S. businesses to transfer an employee from an overseas office to the U.S. The L-1 is split into two subcategories whereby the employee must qualify as an executive or manager (L-1A) or as a “specialized knowledge” employee (L-1B).
Who do they help: This visa classification helps companies that have an international presence and that need to move their employees from abroad to the U.S. for various business needs.
Who can get them: Prior to an employer being able to bring an L-1 worker to the U.S., the individual must have worked abroad for a qualifying entity for one continuous year within the preceding three years in a “managerial,” “executive,” or “specialized knowledge” position. In addition, the L-1 worker must fill an open job position in the U.S. in a “managerial,” “executive,” or “specialized knowledge” capacity.
What makes them unique: One benefit of utilizing the L-1 program is the ability for a company to obtain a “blanket designation” that significantly streamlines the application process. An employer can apply for the Department of Homeland Security to approve its corporate relationships (i.e., subsidiaries, affiliates) as qualifying for L-1 treatment. Once its corporate relationships are approved by DHS, the company no longer needs to file individual petitions, as its employees can apply directly to a U.S. Consulate abroad for an L-1 visa. The maximum duration of stay for an L-1A worker is 7 years in the U.S.; the maximum duration of stay for an L-1B is 5 years.
Mexican and Canadian Professional Workers - TN Visas
What are they: The TN visa classification was created under the North American Free Trade Agreement to provide greater mobility for professional workers between the U.S., Canada, and Mexico. The TN allows U.S. companies to employ qualified Canadian and Mexican professionals on a temporary basis.
Who do they help: The TN visa helps many different companies that cannot meet their professional workforce needs. Companies must seek to employ an individual in a capacity listed in the U.S.-Mexico-Canada Agreement that replaced NAFTA. The positions that an employer can seek a TN worker for include, but are not limited to, accountants, engineers, lawyers, pharmacists, and scientists.
Who can get them: For a U.S. employer to hire an individual on a TN visa, the company must seek to employ the worker in one of the many professional capacities listed in the USMCA. The foreign national must have a job offer to perform temporary services for a U.S. employer and they must also prove they have the relevant educational training and/or work experience to meet the job requirements.
What makes them unique: A TN applicant does not need to obtain prior approval for the visa from the United States Citizenship and Immigration Services before they come to the U.S., which makes utilizing this visa very expedient for employers. Recipients of this visa are generally provided status in 3-year increments, with the option to extend. Another benefit of hiring TN workers is that there is no annual quota and there are no labor certification requirements employers must comply with in order to hire workers on a TN visa.
Critical Considerations When Applying for Visas
Planning ahead – The rules and regulations governing the operations of each nonimmigrant visa program are complicated. Some programs have annual caps, and due to those caps, there are certain times of the year where if you failed to begin the filing process petition, you will likely be unsuccessful in obtaining any visas for potential workers. Knowing all of these “ins and outs” is imperative to use these programs effectively.
What about family members? – If bringing a worker into your company means that his or her family must join them in the U.S., you must obtain visas for their family members as well. This typically raises the costs for your company. In addition, for some foreign nationals, it is critical that their spouse be able to work in the U.S. Some programs provide the worker’s spouse with employment authorization relatively easily, while others have much more complicated rules on when and under what conditions the worker’s spouse may obtain a work permit.
Hiring good immigration counsel – If your company is in desperate need of workers and you cannot find American workers to fill your open positions, you want an experienced immigration lawyer handling these matters. Hiring licensed attorneys with no or little experience in immigration matters is a recipe for failure. Hire counsel with a proven track record of helping companies through the visa application process.
About the authors
Jon currently serves as the Vice President of Immigration Policy at the U.S. Chamber of Commerce. He joined the Chamber in June 2014. He works with Chamber member companies to form Chamber policy positions on various issues and he advocates for sensible immigration policies before Congress and the executive branch agencies.