When an acute labor shortage collides with an arcane immigration system…
January 23, 2022
Sometimes when you’re submerged in/subsumed by something, you lost the capacity to see if objectively - this is how the U.S. immigration system feels sometimes. Instead of weeks, processing times are measured in months and years, and by capping the number of H-1B visas and the length of time an employee can be in H-1B status, gifted foreign professionals are left with no other choice than to leave the country (and into the job markets of other countries). These are all facts that we live with.
Once in a while a new overseas client will come along that assumes that obtaining employment visas for their transferring personnel is just a matter of jumping through bureaucratic hoop jumping - time consuming and tedious, but generally possible. When we explain the very limited options available to employ foreign workers in the U.S., it’s hard not to feel their exasperation, and to (momentarily at least) see the system for what it is - entirely unfit for purpose and a huge missed opportunity. In the past a counterargument to the above would be that the U.S. system is designed, first and foremost, to protect U.S. workers and that without a system of brakes/hurdles, foreign workers would undercut U.S. wages and lead to a rise in unemployment. If this argument held any weight in the past, it does not today. While there are obviously a few careers/fields where this still may the case, the U.S. in the midst of a labor shortage. One solution to this shortage would be to bring in more foreign workers, or at the very least to streamline the application process to make it easier for U.S. companies to sponsor foreign workers who already qualify for nonimmigrant employment visas to get into the USA quickly. Unfortunately, neither is on the cards.
Ultimately, unless the foreign worker qualifies for one of the more straightforward visa categories such as the E-2 (treaty investor) or E-3 (specialized occupation - Australia), there’s no easy answer to the question “how do we bring over one of our young business development managers/technical support assistants/account supervisors to help grow the market?”. Instead we’re left with options that might work, but aren’t often an easy fit - e.g. an L-1A '“new office” visa (possible, but the initial visa is only issued for a year and renewing it can be tricky/time consuming), “standard” L-1A/L-1B visas (difficult because the employee might not be senior enough/doesn’t have a sufficient level of specialized knowledge), H-1B (only 25% chance of being picked in the H-1B “lottery”, and then the earliest date the worker can start is 6-7 months after the initial application is submitted), or an O-1 (extraordinary ability - generally a tall order). None of these are straightforward, inexpensive to prepare and guaranteed to succeed. When pandemic related visa processing delays are factored in, it makes the whole endeavor feel like an insurmountable challenge. When relaying this to the overseas company, the exasperation soon turns to resignation that U.S. system moves with neither speed nor efficiency and once in a while, a decision to re-focus their business on another jurisdiction - one where their key people can be temporarily moved into without issue.
