Main Avenues for Foreign Workers Moving to the U.S.
Henry Goldbeck, President of global recruitment firm, Goldbeck Recruiting, speaks with Rick Hepp, Labor and Employment Attorney at Benesch Law, regarding foreign employees’ visa applications and challenges.
Henry: If a Canadian citizen want to get a job in the U.S., what do they have to do and how difficult is it?
Rick: The first thing that I would say is that there is under NAFTA a very special relationship between the U.S. and Canada, and Mexico as well.
Under the TN Visa of NAFTA, it is a very easy process if the applicant qualifies and the reason that NAFTA is so beneficial is that even though the applicant cannot have the intent to move to the U.S. full-time, they get a visa for 3 years and they can renew it indefinitely. So, as long as they say that they plan to move back to Canada one day and can prove that intent, then you can continue to live in the U.S. so long as you have a job.
I would say the one thing about a TN Visa, and this qualifies for most or various visa types offered by the United States, is that you cannot be self-employed as a TN. You need to secure a job, you need to be able to provide the border agent with proof through a job offer letter. There are a fairly broad number of professional categories that qualify for a TN Visa and most require a bachelor degree; there are some occupations, for instance consulting management, where you can have 5 years of experience in lieu of. The categories are General, Medical, Scientist and Teacher.
It’s kind of an interesting mix… there are a wide variety of options available for Canadians who do want to move to the United States as long as they secure employment, they qualify with the correct degree, and the job opening qualifies under the TN Visa status.
And the other reason I think this is a great avenue for Canadians is that you don’t have to do much; it’s a fairly simple application that you take to for example, Pearson International airport or wherever there’s a border crossing and you can apply instantly. You should learn right there whether you are going to get the visa or not which is the opposite of nearly every other visa that’s out there.
Henry: Do you have to have applied ahead of time or can you show up and your first application be at the border?
Rick: Correct. I wouldn’t want to order the tickets on the airplane first. I’d go get the visa, and then order my tickets.
Henry: What is the next most common option outside of a NAFTA TN Visa?
Rick: Your next best option is to see if you qualify for an H-1B Visa which is for specialty occupations. H-1Bs are a little more difficult than a TN in that you have to have a bachelor degree or greater, and that bachelor degree has to be more or less synonymous with the profession that you are applying to work in. Whatever your degree is, say you are a chemist, you qualify to become a chemist, and that’s a specialty occupation; therefore, you would be able to get a H-1B Visa.
Sales reps may be more difficult but if you are selling chemicals, for instance, and the job requires a chemist degree, then you can show that it’s a specialty occupation because you are selling certain types of chemicals and have to have that background. This is a little more persuasive and I don’t think I would have a problem applying for an H-1B Visa in this case.
Henry: We often have Canadian clients with sales representatives based in Canada but selling in the U.S. What are the rules surrounding this scenario?
Rick: One of the things to keep in mind is that if you work for a Canadian company and you are a sales rep wanting to sell into the U.S., and your product is manufactured in Canada or outside the U.S., you can come into the U.S. to do these sales calls using a B-1 Visitor Visa. It’s fully permissible.
On a Business Visitor Visa, you are permitted to engage in commercial transactions such as negotiating contracts or consulting with clients, or consulting with your business associates. You simply cannot do any gainful employment type work. You cannot take away work from U.S. citizens or those who are in the United States. But you are allowed to enter into contracts which is not quite work. You are allowed to go to conventions. If you make a sale, for example, your company manufactures equipment in Canada and the sales rep comes down to make a sale, the Canadian company can send a supervisor to help supervise the installation of that equipment and help train the U.S. workers on how to operate the equipment under the B-1 Visa. They cannot, however, do the installation themselves.
The B-1 Visa option is a little bit narrow and you cannot actually do real work but it gives Canadian companies a great opportunity to expand their businesses into the U.S. at least.
Henry: But can you cross the border and start knocking on doors and making sales calls…. If I am based in Vancouver and my company says “let’s go get some company accounts in Seattle” can I cross the border and start knocking on doors and asking or developing business.
Rick: Yes, it’s totally permissible. You are allowed to sell things as long as the product will be completed in a foreign country and the money from the sale will go to your Canadian employer or somewhere overseas.
Henry: And what is process for getting the visa?
Rick: It’s fairly easy. Most the time, you show up at the border, tell them what you are doing, and they will just let you through. For Canadians, you wouldn’t have to apply ahead of time.
For other countries, you would apply … but it’s also not that onerous.
Henry: What if you have a proprietary workshop, like a business sales training that you do in Canada, that you’ve developed in Canada, and you want to advertise in San Francisco and fly down and give a seminar to paid participants or companies in San Francisco or the U.S. Is that possible under the B-1 visa or is that different?
Rick: I think that’s work. I would qualify that as work because you are getting paid to perform work in the United States. You are being paid a fee to appear. I don’t think that’s quite the same thing. If you were not getting paid, I think it would be ok.
Henry: And if a Canadian company opened a branch, if I opened a branch for Goldbeck Recruiting in Cleveland, could I transfer myself down there or one of my employees down there to work in the office or do I have to hire only American citizens?
Rick: Under the L-1 Visa, you are allowed to be a foreign company and get a visa for a manager or an executive to open a new office in the United States. There’s a couple of things to keep in mind: the foreign company has to have a physical address, you have to be able to show that you have a lease or type of facility where business is being conducted, and that you are going to be developing legitimate business operations with the individuals that you have transferred. You need to show that there’s intent that the U.S. operation would be able to support that executive or manager within a year. It needs to have some real revenue after the first year so that you can extend that L Visa even further.
Henry: Basically, you have to justify that this isn’t just a way to place somebody in the U.S. … you have to show that it will have a legitimate revenue, business purpose office, etc.?
Rick: Right! And the person you are sending down has to have been employed by the Canadian parent company for at least a year in the last 3 years. There are certain other things that you have to qualify but if the intent is to open an office, I am sure you would be able to find someone who qualifies for that.
Henry: What are the restrictions or difficulties in hiring an American citizen in the U.S. to work for a foreign company?
Rick: I don’t think there are many restrictions. You could hire an independent contractor and if you wanted to do it that way, you’d enter into a service agreement and pay the independent contractor whatever the fee is that you and the contractor had negotiated, and the contractor would have responsibility for paying any of the wage tax that he/she may owe.
Henry: What are the most common scenarios that you are working on for your corporate clients in terms of immigration issues for their employees?
Rick: I think we have talked about the three most likely suspects which are the TN, given that we are in the U.S. and have this special relationship with Canada and Mexico. Our first inquiry is who do we want to hire and which nationality. If the employee or first applicant is from Canada or Mexico, we first see if they qualify for the TN Visa and if they cannot, then it becomes more difficult.
The L-1 Visa is a much better avenue if you are looking to hire executives and managers, and to a certain extent you can also hire employees who have a specialized knowledge. Essentially, it means that the person you are hiring is not a manager but is the cream of the crop in their trade. In all of the L visas, you have to be able to show that the U.S. company has a relationship with the foreign company and that they are owned by a parent company or one of the branch of the other. So, they would have to have a qualifying relationship and the employee you want to get into the United States, as I said, has to have worked for one year out of the last three years for the foreign company, and you are seeking, under an L Visa, to transfer that employee from the foreign company to the United States.
The third visa that we are normally processing is the H-1B Visa. The problem with the H-1B Visa is that there are only so many. There are only some 60,000 H-1B Visas available per year for applicants who have a bachelor’s degree and an additional 20,000 for applicants who have a master’s degree.
it’s a limited number and because of this number, what we are finding over the last couple of years, is that 2-3 times as many applicants apply for a H-1B as is available which means that within a week of H-1B applications being taken – which usually starts April 1st or the first business day after April 1st – they are all taken up and so you cannot get an H-1B Visa even if you want one and the person is qualified, unless you have applied within that one week in April.
Henry: Can you do H-1B in advance? In Canada, before they find the person, they are able to get the visa. We have what is called the Labour Market Opinion. They have to prove that they cannot find someone and then they get a visa without a name on it and they find the person and attach the name. Is that something you can do for your clients as well?
Rick: No, you cannot do a blank H-1B, unfortunately. Now, you can get a H-2Bs which are for non-agricultural temporary employees who are not being hired for professional work; they are being hired for more manual labor. For example, manufacturing on the line, landscaping, work at Disney World, etc. Once you get to show the need, then you just have to identify the people that are going to fill those H-2B visas. They still have to qualify but it’s a little easier because you have already shown the need and the qualifications are minimal to meet the need.
Henry: Vancouver is a hotbed for English schools and there are hundreds of foreign language students in the street from around the world. For every year of post secondary education that a foreign student completes in Canada, they receive a percentage of time to work here in Canada under the Post Graduate Work Permit Program. Do they have a similar system for post-secondary students in the U.S.?
Rick: For college, yes, we do. If you are a foreign student in the United States, you come on what’s called an F Visa, a student visa, and you are able to work for 12 months while you are in school under a program called Optional Practical Training (OPT).
The job you want to take has to be specific to your degree. Although if you don’t use your 12 months while you are studying and you graduate, you can use the full 12 months or however much time you didn’t use after you graduate. This is fairly common and a really good resource for a lot of employers here in the U.S. If you go to get a bachelor degree, you have 12 months and if you go to get your Masters degree after that, you get an additional 12 months.
Now keep in mind that if you are in one of those stem programs: science, technology and math, you will receive, in addition to those 12 months, a second extension for up to 27 months which is a long time to convince your employer…you get a couple of bites to get your H-1B while you are working under your OPT.
The difference between working under a H-1B Visa, where you are a professional, is that an employer who is hiring under a H-1B is required to pay what they call a prevailing wage which is determined by the U.S. Department of Labor. The idea is that they are required to pay the base of what you can pay in that occupation, in that location, wherever the employee is working. Under OPT, the employer is not required to pay a prevailing wage. They usually do because it’s competitive; however, they don’t have to get a determination from the Department of Labor on how much you are going to pay that individual under OPT. So, it’s a little easier in terms of regulations and it’s easier in terms of application. The graduate student or the post graduate student actually gets the work authorization through the university.
Henry: Rick, thank you very much for your time and we hope you have a great day!
Rick: Thank you; you too.