Preparing for the Challenges of Business Immigration

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Due to the tight time windows and specific requirements of many visa processes, advanced and strategic planning relating to business immigration is the key to long-term company productivity. With proper planning, New Hampshire businesses – and the state’s economy as a whole – benefit from being able to staff positions that would otherwise remain unfilled by U.S. workers.

When does a business typically reach out to an immigration lawyer?

New Hampshire employers generally inquire about immigration options for a worker for one of two reasons: (a) a current non-citizen employee is nearing the end of his or her authorized employment period; or, (b) essential positions within the company remain vacant despite significant efforts to recruit U.S. workers.

Why is it important to plan ahead?

The importance of long-term planning is illustrated by the example of visa “caps” indexed to a specifically-delineated fiscal year. Some visa categories have a numerical quota that is met within the first few days of the filing window each year. For example, in recent years, H-1B petitions for skilled “specialty occupation” workers require filing within the first five business days of April each year in order to have a chance of being selected in the so-called lottery. For non-agricultural temporary workers (e.g., landscapers, seasonal restaurant workers, hospitality workers, housekeepers, etc.), 66,000 visas are divided into two groups of 33,000 for each half of the fiscal year.

In addition to the strict windows for visa application and considerations of processing times, there are also maximum visa duration periods for certain specific visa categories. For example, the L-1A visa for Intracompany Transferee Executive or Manager has a maximum validity period of 7 years, whereas the L-1B visa for Intracompany Transferee Specialized Knowledge has a maximum period of 5 years. If an employer wants to continue to employ an individual beyond the maximum term of a particular visa category, the employer must then sponsor the employee for employment-based permanent residence, allowing for enough lead time (usually over a year) to avoid any gaps in employment authorization.

How does a business plan ahead?

While admittedly cumbersome, in order to retain a valuable employee over time, an employer should create an immigration action plan – noting key benchmarks and timelines – early in the individual’s tenure. A multi-year plan of action for that individual maximizes the probability of successfully navigating the labyrinthine visa process, especially by maintaining a clear focus on timing, supporting documentation and satisfaction of the specific elements of a particular visa classification. Such a plan also accounts for the maximum periods allowed on particular visa types, as well as other restrictions, including whether and when the employee would require employer sponsorship for lawful permanent resident status.  Establishing such a procedure for foreign national employees permits employers to navigate these multi-stage complex processes with greater ease and – ultimately – with more predictability, reducing the chance of prolonged periods of unstaffed needs within the organization.

Ron Abramson is Counsel at Shaheen & Gordon, P.A. and leads the firm’s Immigration Law Group. In a career spanning 25+ years, Ron has handled a multitude of immigration, criminal defense, civil litigation and international legal matters.

Categories: Legal

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