Businesses may be overlooking these options for finding workers

By: Terri Dougherty

Publication: Employment Law & Regulatory Alert

Date Posted: 05/19/2022

A tight hiring market means employers might need to explore new avenues to find workers. One option is to look for workers who are citizens of countries besides the U.S.

Recent federal initiatives are expanding the pool of foreign workers who are eligible to work in the U.S. Hiring individuals from other countries, however, brings additional responsibilities for employers.

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Options and requirements

Exchange visitors

Individuals who have an exchange visitor (J) visa are in the U.S. for the experience of living in the country and are often sponsored by colleges or universities. The Department of State’s Early Career STEM Research Initiative, announced in January, looks to connect exchange sponsors with businesses.

“The J-1 initiative is definitely an avenue small- and medium-sized businesses could explore,” said Tiffany Derentz, senior counsel at the Washington, D.C. office of the law firm BAL. Derentz spoke on business immigration at the Society for Human Resources Professionals (SHRM) Employment Law and Compliance Conference in Washington, D.C., in March, and discussed small business visa options in a post-conference interview.

“The State Department is trying to align existing sponsors with new host companies that want to bring on these talents,” Derentz said. “It’s still in the initial stages, but this is a way for companies that might not otherwise use this [visa] category to bring in foreign talent.”

STEM graduates

In January, the Department of Homeland Security (DHS) added additional fields of study to a program that allows students who studied in the United States under an F-1 visa to stay in the country for practical training after graduation.

The STEM Optional Practical Training (OPT) program focuses on students with science, technology, engineering, or mathematics (STEM ) degrees.

Under the program, graduates with bachelor’s, master’s, or doctorate degrees in certain STEM fields can stay in the United States for up to 36 months to work in their field of study. The new fields of study include bioenergy, general forestry, cloud computing, general data science, climate science, and business analytics.

Workers withrefugee status

Individuals who have come to the U.S. as refugees from Afghanistan, the Ukraine, or other countries may work in the U.S. after obtaining a work authorization. They may work in any job for which they are qualified.

“Refugees are another resource of people available to work, and a lot of times willing to work,” Derentz said. “There are opportunities out there for companies to use individuals in the U.S. with refugee status who have their work authorization.”

Employers hiring individuals with a work authorization fill out the Form I-9 as they do for all employees and enter the individual’s employment authorization document information on the form as proof of eligibility to work in the U.S.

Visas for unskilled workers

Employers looking to hire temporary workers for nonagricultural jobs can use the H-2B visa program. Employers have, however, a number of steps that must be completed, including obtaining a prevailing wage determination and filing the Form I-129, Petition for Nonimmigrant Worker.

There is a cap on the number of H-2B visas issued each year, so employers interested in this option need to begin the process about a year before the employees are needed.

“It can be a lot to navigate for smaller companies that might not have the budget or staff and haven’t had to do this on a regular basis,” Derentz noted.

If employers have a longer-term need, however, they might benefit from familiarizing themselves with the program. More information on H-2B visas is on the U.S. Citizenship and Immigration Services website.

Getting advice

A consultation with an attorney can give a company a better idea of what the visa process entails.

“If someone wants to look into this long-term, definitely contact a good immigration attorney and get a sense of the legal requirements because the law is so complex,” Derentz said. “There are so many different pieces.”

About the author
Terri Dougherty - Human Resources Editor

Terri Dougherty focuses on labor law posters, drug testing, marijuana legislation, and employee wellness.

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