Temporary and Permanent U.S. Immigration Options for Information Technology Workers

U.S. employers seeking to bring foreign information technology (IT) talent to the United States, and IT workers seeking ways to obtain authorization to work in the United States, have several options.  Some of these are geared at college students or recent graduates seeking temporary training, and others are more suitable for degreed professionals,  with increased options for senior or well-established members of the profession. Here is an overview of the most common U.S. visa categories for the IT industry:

Temporary Work Visa Categories:

  • For foreign trainees and interns: J-1 intern up to 12 months (for those currently pursuing post-secondary education outside the U.S. or who graduated no more than 12 months ago) OR J-1 trainee up to 18 months (for those with a foreign degree + 1 year of work experience or 5 years of work experience abroad) – run through U.S. Department of State; H-3 Trainee for up to 24 months (for those seeking training that is not available in the home country, and which will benefit the individual’s career abroad) – run through U.S Citizenship & Immigration Services.
  • For foreign students in the United States: F-1 on-campus employment; F-1 curricular practical training (CPT; i.e., on the job training that is part of the curriculum); F-1 pre-or post-graduation optional training (OPT) for up to 12 months; and F-1 STEM OPT extension for up to an additional 24 months (for those with a U.S. degree major in a STEM field and whose employer is enrolled in E-Verify).
  • For degreed professionals (at least U.S. or equivalent foreign bachelor’s degree in an IT or closely related field):  TN U.S.-Mexico-Canada Free Trade Agreement professionals in increments of up to 3 years (no max), for computer systems analysts and possibly software engineers under “engineers”; H-1B1 Chile or Singapore or E-3 Australia professionals in up to 2 years increments (no max); H-1B specialty occupation (most common, might be subject to annual lottery) for up to 6 years max in up to 3-year increments (with exceptions to max based on pending green card process).
  • For degreed or non-degreed IT workers: L-1A intracompany transferee (manager/executive) for up to 7 years; L-1B intracompany transferee (specialized knowledge) for up to 5 years – however, L-1B individuals applying abroad based on the employer’s blanket L petition must be degreed professionals (very common for large, global IT service providers).
  • For nationally or internationally renowned professionals: O-1 person of extraordinary ability for initially up to 3 years and then in 1-year increments, with the ability evidenced by awards, publications and published material about the individual, and similar evidence such as patents (not impossible, but challenging in the IT industry as employer-independent awards are rare).
  •  Via a commercial treaty between the United States and the country of citizenship of the investor and/or employee – the U.S. business must share that nationalityE-1 treaty trader or E-2 treaty investor, either as the investor or as a managerial or specialist employee (document-wise complicated and therefore likely underused; no max, admission in up to 2-year increments with visa stamp permitting travel usually valid for 5 years).

Permanent (Green Card) Work Visa Categories:

  • For multi-national managers/executives: EB-1-3 (similar to L-1A; no test of the U.S. labor market required).
  • For nationally or internationally renowned professionals: EB-1-1 person of extraordinary ability (self-petition possible) or EB-1-2 outstanding researcher/professor (both similar to O-1 but higher standard; no test of the U.S. labor market required); EB-2 advanced degree holder or person of exceptional ability + national interest waiver (where the IT work would have substantial merit and national importance; no test of the U.S. labor market required; self-petition possible but challenging in the IT industry).
  • For those not qualifying under the above: EB-2 advanced degree holder or person of exceptional ability or EB-3 professional or skilled worker PERM application for labor certification = test of the U.S. labor market with U.S. Department of Labor prior to filing petition with U.S. Citizenship & Immigration Services.

Immigration counsel can help IT employers and individuals determine what options are feasible, and advise on expected timing and cost.

Hiring and Immigration: Questions to Ask and Factors to Consider

Hiring season is fraught with questions and uncertainties; preparing employment applications;  interviewing, drafting offer letters….. What questions can be asked? What questions should be asked? These concerns are even more pronounced when it comes to immigration status, and immigration sponsorship.  Those tasked with the hiring process often ask,  whether it is legal to ask applicants about their immigration status, how to ask that question,  and even more important,  “Do we have to sponsor for immigration status if the applicant needs it?”

Read the full post here: 

F-1 Student Ban from 100% Remote Education Rescinded

On July 14, 2020, the Trump Administration rescinded SEVP guidance issued last week,  which forbid F-1 students from attending universities that were planning to be 100% remote during the fall 2020 semester.  With the rescission, schools may now revert to following  the SEVP March 9 Broadcast Message: Coronavirus Disease 2019 and the March 13  COVID-19: Guidance for SEVP Stakeholders . Read more about this important development in our education law blog, UpdateED.

 

 

 

No End in Sight to State Department Visa Processing Delays

On June 15, we reported that the State Department computer system used for verifying the personal data of visa applicants and for printing visa stamps was crippled by a “glitch” causing worldwide delays. Today the State Department estimates that it will be at least another week before the problem is resolved.  The agency also confirmed that it was a hardware failure, which has eliminated its ability to process it’s regular volume of 50,000 applications per day. Continue reading “No End in Sight to State Department Visa Processing Delays”