TN visas, intended for Mexican and Canadian skilled workers coming to the US for specialty jobs, are used for other purposes.
Editor’s note: This article was contributed by an attorney Karl Kuck as part of Look Baxter Immigration‘s sponsorship of Global Atlanta.
Karl Kuck
Desperate times call for desperate measures Georgia Businesses that need workers and unfortunately some abuse the visa system to fill vacancies.
It is true that Georgia’s burgeoning new investment and business expansion in the manufacturing and technology sectors requires foreign workers to fill specialized jobs. And companies just can’t find enough qualified local talent.
A recent case involved Mexican Engineers brought to Georgia on nonimmigrant NAFTA Professional (TN) visas by a recruitment agency that promised them high-level technical jobs. They finally made a manual work at parts suppliers for come on and Hyundai. ThatHowever, they could not leave their roles because of their legal permission to work in the United States depended on the TN visas sponsored by this employer.
This is just one example of visa fraud cases that demonstrate a structural flaw in the contract-based TN visa system. The TN visa should bring Canadian and Mexican professionals to the United States to fill jobs there 60 NAFTA occupationsmost of which require at least a bachelor’s degree.
Georgian companies resort to the TN visa because they cannot find the right workers here and have no other legal way to get them. And with the rate of new investments in the state, the problem will not go away.
so, how do Are companies getting the talent they need? Ultimately, the answer lies in reforming legal immigration at the federal level.
But in the meantime, Georgian companies should take the following steps:
1. Find out about your visa options for temporary foreign workers.
Businesses large and small are constantly wondering how to get workers. Often my answer is “luck”. There are few legal opportunities to recruit foreign workers.
If a company does not have a foreign facility that would allow it to bring foreign workers here on an L-1 visa, its only options are:
- H-1B visas: These work visas are capped at 85,000 per year, require a bachelor’s degree, and are awarded once a year in March and April through a lottery system that has, at best, a 20% chance of winning.
- H-2B visas: These are capped at 66,000 per year and are awarded twice a year by lottery. But they are expensive to process and there is never a guarantee that visas will be obtained from the consulate, even if they have been approved by the consulate work department and United States Citizenship and Immigration Services (USCIS).
- O-1 visas: These nonimmigrant visas are for people with “extraordinary ability” who are coming to the United States temporarily to use those skills for a job. This category is actually very useful for people with unique skills or extensive experience.
- TN Visa: These visas are only for Canadian and Mexican professionals to fill positions specified in the USA-Mexico-Canayes agreement (USMCA; formerly NAFTA).
Apart from these visas, there are no other legal options for temporary workers. Our current legal immigration system was developed in 1990 when the economy was primarily based on manufacturing. Now we have a 1990 system trying to serve the 21st century service economy.
We have a 1990 system trying to serve the 21st century service economy.
2. Use Visa only for its 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 is technically tantamount to human trafficking if these migrant professionals are tricked into working in jobs unrelated to their TN visas.
Herein lies a structural problem in issuing TN visas. That US Department of State has primary responsibility for TN visas outside of the United States, but has no investigative capabilities within that country and no system for tracking applicants and employers. Unlike other work visas, such as the H-2A guest worker program, which brings tens of thousands of temporary farm workers to Georgia each year, TN visa holders and their employers are not closely monitored.
If USCIS had authority to issue TN visas, it would have considered the unusual request made by the aforementioned small Georgia engineering firm for 40 TN workers. In the future, this will no longer be a problem as US consulates in Mexico and Canada will be keen to double check companies that request large numbers of engineers or analysts. But this problem exposes yet another flaw in our immigration system.
3. Be careful with third party employment agencies.
Many Georgian companies use external employment agencies to hire foreign workers, putting the responsibility on the agency rather than the employer. This rule can allow for fraud as companies will not be held responsible for abuse of the visa system.
That Biden administration could easily fix this loophole by making a simple regulatory change that says companies must share responsibility with third-party providers when issuing visas to immigrants.
But President Biden and his staff are completely uninterested in doing the right thing about imigration in general. Director of Susan Rice, United States Domestic Policy Councilhas put immigration on the back burner, for example.
4. Develop a long-term foreign labor recruitment strategy.
The COVID pandemic and mass retirements of baby boomers have opened the eyes of US companies that are now unable to find the workers they need. Georgia markets itself as a great place to do business, but companies opening offices here cannot get the labor they need.
Some are so desperate that they open offices abroad just to bring foreign workers into their US facilities. The fact that companies are doing this shows how broken the system is.
If a Georgian company has a foreign branch, it can use various temporary work visas to bring foreign workers here:
- L1 all: Foreign employees of a US company can use L1 visas to work for that company in the US. The company must train the foreign employees (at the foreign facility) before bringing them to the US and be active in both countries.
- EB-3 visas: Employment-based third preference immigrant visas allow skilled and unskilled workers, professionals or others to work in the United States if they are full-time employees of a US corporation and American talent cannot be found to perform the work.
- H-3 all: Non-citizen trainees or special education exchange visitors may use H-3 visas to come to the United States temporarily for vocational training for work performed in locations outside of the United States. The training must not be available in the applicant’s home country.
- B1 all: These visitor visas are for non-immigrant business people who are coming to the United States to consult with business associates, attend a conference, negotiate a contract, perform factory installation, or perform other work-related activities.
We are currently seeing record use of the Employment-Based Third Preference (EB-3) program to attract skilled workers to fill positions in Georgia.
5. Consider green cards.
The process of obtaining H-2B visas to hire temporary nonimmigrant skilled workers can take anywhere from 6 to 10 months, and companies must demonstrate that there are no qualified and willing American workers to perform the work. This schedule is unsustainable when companies need to get specialized work done quickly.
Since temporary work visas are difficult to obtain, a viable option for Georgian companies might be to go through the process of immigrating workers to the US as permanent residents. This can take two years but can be more cost-effective than trying to find labor in the US
As a result, companies are increasingly requiring foreign workers to sign multi-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 foreign workers already in the United States illegally cannot apply for green cards, except in a few exceptional cases.
Businesses in Georgia generally need to plan ahead to hire foreign workers. Tech companies in particular should keep an eye on their talent needs for years to come given the difficulty of obtaining visas.
The visa debacle highlights the blatant inefficiency of our immigration system.
6. Call for federal immigration reform.
The US skills shortage will not go away; In fact, it’s getting worse as 80 million baby boomers retire and only 40 million Gen Xers replace them. As of 2022 we will need to absorb more than 1 million immigrants per year just to maintain our population! If we don’t get more bodies here quickly, this problem is actually going to get a lot worse.
Also, we currently have 2 million fewer legal immigrants in the country than we should have due to the COVID pandemic and before president Trump cardthe immigration restrictions. In 2020 we accepted the lowest number of legal immigrants since 1789!
If only we had 10 US Senators to vote for it House invoice HR 6, With the American Dream and Promise Act of 2021, we could fix our immigration system in this country. But at the moment we don’t.
Meanwhile, companies in Georgia should exercise caution when hiring foreign workers and seek sound advice on the best ways to fill their critical positions.
contact us under https://www.immigration.net/contact-us/ or (404) 816-8611 to learn what you can do to get the foreign talent you need.