According to the White House in April 2021, our economy was down 8.4 million jobs from the pre-pandemic peak in February 2020. However, as businesses are opening up again, there isn’t a surplus of workers to fill the roles. Surprisingly, there is a shortage of Americans looking for work right now. Bank of America economists believe this is due to expanded unemployment benefits, concern over COVID-19, and home-schooling children for working couples.
Due to this economic reality, sourcing workers from abroad has never been more important to help revive our economy. We will look at an overview of the different options available to companies for bringing in foreign workers on a temporary basis and to potentially help fill the void of a labor shortage.
H2A: Temporary Agricultural Workers
Prior to sourcing foreign workers under H2A, an employer must first file documentation with the Employment and Training Administration (ETA). First, the employer must attest that there are not enough workers in the U.S. who are able, willing, qualified, and available. Proof of efforts to recruit U.S. workers will be required. Second, the employer must attest that the employment of foreign workers will not adversely affect the wages and working conditions of workers similarly employed in the U.S. Workers under H2A must be paid the prevailing wage, which varies by locality.
Some of the provisions under this scheme require subsidized housing and transportation to the worksite for foreign workers. Foreign workers must also be guaranteed 75% of the work hours offered in the contract. There is currently no limit set by Congress for the number of H2A visas issued each year.
The standard government processing time for H2A applications is about 75 days.
H2B: Temporary Non-Agricultural Workers
Employers looking to bring in foreign workers under H2B must also meet the ETA requirements mentioned in H2A above, and they must also prove that the employment need is temporary. To prove this, an employer must demonstrate that the need is either: (1) a one-time occurrence, (2) a seasonal need, (3) a peak load need, or (4) an intermittent need.
The H2B Workforce Coalition stated that the H2B “serves a critical safety valve for companies to address seasonal labor needs when there are not a sufficient number of available American workers to meet the demand for these short-term jobs.”
Since this is a broad category, the number of visas available under H2B is limited. Until April 2021, only 66,000 visas were available each fiscal year. These were divided equally, allowing 33,000 foreign workers to come in the first half of a fiscal year, and the other 33,000 to come in the second half. In April, an additional 22,000 H2B visas were made available for this year. 6,000 of these additional visas are set aside for applicants from Guatemala, El Salvador, and Honduras. These countries have the highest number of people seeking asylum in the U.S.
The standard government processing time for H2B applications is between 60 and 120 days. There are also specific filing periods, which also impact the timing for hiring H2B workers.
J-1: Exchange Visitor
J-1s are issued to applicants who intend to participate in an approved program for the purposes of promoting the international exchange of persons, knowledge, and skills in the fields of education, arts, and science. Some of the more common examples are trainees, interns, research assistants, scholars, au pairs, and camp counselors.
Unlike most applications for immigration benefits, J-1 applications go through the Department of State (DOS) rather than USCIS. Applications must be submitted through a DOS approved J-1 sponsor that supports the specific type of J-1 being applied for.
A spouse and any children under 21 years of age are also entitled to apply for dependent J-2 visas, through which they may also apply to USCIS for employment authorization. This application process typically takes 4-5 months.
J-1 application times vary depending on the J-1 sponsor. Once approved through the J-1 sponsor, the employee may then make his or her application for a J-1 visa at a U.S. consular post abroad.
L-1: Temporary Workers
This type of visa is for intracompany transfers. There are two different types of L-1 visas. L-1A is for managers and executives, and L-1B is for employees with “specialized knowledge.” Specialized knowledge is defined as knowledge or skills that are unique, advanced, or uncommon in the marketplace.
Employers can transfer their executives, managers, and skilled personnel from one of their offices abroad into one of their offices in the United States. If the employer does not have an office in the U.S., the L-1 visa allows them to send an executive or manager to the U.S. for the purpose of establishing one. Both types of L-1 visas require the applicant to have worked for the employer for at least one year.
As with a J-1 visa, L-1 visa holders may also bring dependents who are eligible to apply to USCIS for employment authorization.
There is no cap on the number of L-1 visas issued on an annual basis. L-1 visa may be granted for up to 5 years for specialized knowledge employees, and 7 years in the case of managers or executives.
The standard application processing time for an L-1 is around 6 months.
TN: Temporary Workers under the United States-Mexico-Canada Agreement
Canadian and Mexican nationals can benefit from an expedited and streamlined work visa route via the TN classification. The TN is for temporary workers whose occupations are on the USMCA Professional List. Professions vary from hotel managers and land surveyors to geneticists and registered nurses. Most professions require a bachelor's degree as an entry-level requirement, but there are some exceptions. For some, experience is required in addition to the degree.
This visa also requires less administrative preparation than most other work visa options and there is no requirement that the employee be employed by the sending company for any minimum time.
Spouses and children under 20 years old can accompany in TD status; however, they cannot work in the US.
The visa can be renewed indefinitely, but the employee needs to show that they maintain a residence abroad and that they do not intend to become an immigrant.
E-2 Essential Employee
The E-2 Treaty Investors visa allows a person of a treaty country to enter the U.S. when investing a substantial amount of capital in a U.S. business. Employees of the investor(s) may be granted E-2 visas as support personnel. This is conditional on the basis that the employee is of the same nationality as the principal foreign employer and engaged in executive or supervisory duties.
E-2 visa holders are granted a maximum initial stay of 2 years. The processing time for an E-2 visa varies from about 2 weeks to 4 months.
There is a need to close the gap between vacancies and the skilled pool capable of filling of them. According to the National Academies of Sciences, Engineering, and Medicine, the “ability to retain labor from abroad is essential to closing this gap, helping to replace an aging workforce, and infusing high skills into the market – boosting innovation and technological change.”
We understand the importance of foreign workers to a revived and sustainable economy. Therefore, we continue to monitor and update our databases with the changing requirements for the different categories of temporary work visas in the U.S. This enables us to provide our clients with options to meet the staffing demands of their business.