Editor’s note: This article was contributed by attorney Charles Kuck as part of Kuck Baxter Immigration’s sponsorship of Global Atlanta.
Desperate times call for desperate measures for Georgia companies that need workers, and, unfortunately, some are abusing the visa system to fill jobs.
True, Georgia’s burgeoning new investments and company expansions in the manufacturing and technology sectors require foreign workers to fill specialty jobs. And companies simply cannot find enough qualified domestic talent.
A recent case involved Mexican engineers who were brought to Georgia on non-immigrant NAFTA Professional (TN) visas by a staffing agency promising them high-level technical jobs. They wound up doing manual labor at parts suppliers for Kia and Hyundai. They could not leave their roles, however, because their legal permission to work in the United States depended on the TN visas sponsored by that employer.
This is just one example of visa fraud cases that demonstrate a structural defect in the treaty-based TN visa system. The TN visa is designed to bring Canadian and Mexican professionals to the U.S. to fill jobs in one of 60 NAFTA professions, most of which require at least a bachelor’s degree.
Georgia companies are resorting to using the TN visa because they can’t find the right workers here, and they don’t have another legal avenue to get them. And, with the rate of new investment in the state, the issue is not going to go away.
So, how do companies get the talent they need? The answer, ultimately, lies in legal immigration reform at the federal level.
But meanwhile, Georgia companies should take the following steps:
1. Know your visa options for temporary foreign workers.
Large and small companies alike are constantly asking how they can get workers. Often, my answer is “luck.” There are only a handful of legal avenues to recruit foreign workers.
If a company doesn’t have a foreign entity, which would allow it to bring foreign workers here on L-1 visas, its only options are:
- H-1B visas: These work visas are limited to 85,000 per year, require a bachelor’s degree and are issued via a lottery system once a year in March and April, which has, at best, a 20% chance of winning.
- H-2B visas: These are limited to 66,000 per year and issued through a lottery twice a year. But they are expensive to process, and there is never a guarantee in securing the visas at the consulate, even if approved by the Department of Labor and United States Citizenship and Immigration Services (USCIS).
- O-1 visas: These nonimmigrant visas are for individuals with “extraordinary ability” who come to the U.S. temporarily to use that ability for a job. This category is actually quite useful for individuals with unique skill sets or substantial experience.
- TN visas: These visas are intended only for Canadian and Mexican professionals to fill jobs identified in the U.S.-Mexico-Canada-Agreement (USMCA; previously NAFTA).
Other than these visas, there are no other legal options for temporary skilled workers. Our current legal immigration system was designed in 1990 when the economy was primarily manufacturing-based. Now, we have a 1990 system trying to serve a 21st-century service economy.
2. Use visas only for their intended purpose.
The TN visa is a great tool, and frankly, one of the easiest to apply for. But, companies that use them should be careful – issuing TN visas under false pretenses technically amounts to human trafficking if those immigrant professionals are made to work in jobs unrelated to their TN visas.
Herein lies a structural problem with how TN visas are issued. The U.S. Department of State has primary responsibility over TN visas outside of the U.S., yet it has no investigative functions inside this country and no system to track applicants and employers. Unlike other work visas, such as the H-2A guest worker program that brings tens of thousands of temporary farmworkers to Georgia each year, TN visa holders and their employers are not closely monitored.
If the USCIS had been in charge of issuing TN visas, it would have scrutinized the aforementioned small Georgia engineering firm’s unusual request for 40 TN workers. Going forward, this will not be a problem because U.S. consulates in Mexico and Canada will be on the alert to double-check companies requesting large numbers of engineers or analysts. But this issue exposes yet another flaw in our immigration system.
3. Exercise caution with third-party employment agencies.
Many Georgia companies use third-party employment agencies to hire foreign workers, thus placing the liability on the agency and not the employer. This arrangement can enable fraud since companies are not held responsible for abusing the visa system.
The Biden Administration could easily fix this loophole by making a simple regulatory change that says companies must share responsibility with third-party contractors when issuing visas to immigrant workers.
But President Biden and his staff are completely uninterested in doing the right thing on immigration in general. Director of the United States Domestic Policy Council Susan Rice, for example, has placed immigration on the back burner.
4. Devise a long-term strategy for recruiting foreign workers.
The COVID pandemic and the retirement of baby boomers en masse have been eye-openers for U.S. companies that now cannot find the workers they need. Georgia markets itself as a great place to do business, but companies opening operations here can’t get the workers they need.
Some are so desperate that they are setting up offices abroad just to be able to bring foreign workers to their U.S. facilities. The fact that companies are doing this shows how broken the system is.
If a Georgia company has a foreign entity, it can utilize various temporary employment visas to bring foreign workers here:
- L1 visas: Foreign employees of a U.S. company may use L1 visas to work for that company in the U.S. The company must train the foreign workers (in the foreign facility) before bringing them to the U.S. and maintain active operations in both countries.
- EB-3 visas: Employment-based third preference immigrant visas allow skilled and unskilled workers, professionals or others to work in the U.S. if they are full-time employees of a U.S. company and no American talent can be found to perform the job.
- H-3 visas: Noncitizen trainees or special education exchange visitors can use H-3 visas to come to the U.S. temporarily for job-related training for work that will be performed in locations outside of the U.S. The training must not be available in the applicant’s home country.
- B1 visas: These visitor visas are for nonimmigrant businesspersons who come to the U.S. to consult with business associates, attend a conference, negotiate a contract, do a factory installation or perform other work-related activity.
We are currently seeing record usage of the employment-based third preference program (EB-3) to bring skilled workers to fill Georgia jobs.
5. Consider green cards.
The process for obtaining H-2B visas to bring in temporary, nonimmigrant specialty workers can take anywhere from 6-10 months, and companies must prove that there are no qualified and willing American workers to perform the job. This timeline is untenable when companies need specialty work done quickly.
As temporary work visas are difficult to obtain, a viable option for Georgia companies could be to go through the process of immigrating workers to the U.S. as permanent residents. This may take two years, but it can be more cost-effective than trying to find workers in the U.S.
As such, companies are increasingly asking foreign workers to sign several-year contracts so they can apply for green cards, even if they only need their services for a short time. One difficulty, however, is that if the foreign workers are already in the U.S. illegally, they cannot apply for green cards, except under some limited exceptions.
Georgia companies, in general, need to plan ahead to bring in foreign workers. Tech companies, especially, should be looking years out at their talent needs, considering the difficulty in getting visas.
The visa debacle illuminates the glaring inefficiencies in our immigration system.
6. Demand federal immigration reform.
The skilled worker deficit in the U.S. is not going to go away; in fact, it’s worsening as 80 million baby boomers retire with only 40 million Generation Xers to replace them. As of 2022, we need to admit more than 1 million immigrants per year just to maintain our population! Unless we get more bodies here quickly, this issue is actually going to get a lot worse.
Plus, we currently have 2 million fewer legal immigrants in the country than we should have because of the COVID pandemic and former President Trump’s restrictions on immigration. In 2020, we admitted the lowest number of legal immigrants since 1789!
If we simply had 10 U.S. senators who would vote to approve House Bill H.R. 6, the American Dream and Promise Act of 2021, we could fix our immigration system in this country. But at the moment, we don’t.
Georgia companies, meanwhile, should exercise caution when seeking foreign workers and get sound advice on the best ways to fill their critical jobs.
Contact us at https://www.immigration.net/contact-us/ or (404) 816-8611 to learn what you can do to get the foreign talent you need.