U.S. companies long have looked around the world to tap the best and brightest.
That’s become more of a focus as global competition pressures even the most cutting-edge drug and technology companies, including those in Orange County.
But in the past couple of years, bringing in talent from overseas has become more difficult. Congress has slashed by about two-thirds the number of skilled foreign workers who are allowed to come to the U.S. through an H1-B visa. Although there was hope in the tech community that Congress would reconsider this year, little has changed.
Immigration lawyers say the new reality is hurting companies, which are spending more time and money to get people into the country, but with less success. Lawyers say that while there are a few ways to try to work around the stricter rules, the real solution lies in boosting the number of H1-B visas companies can tap.
“It’s a major headache for all the multinationals that are using the H1-B,” said Roger Franks, head of the immigration practice at Jackson DeMarco Tidus Peckenpaugh in Irvine. “For the smaller companies that aren’t as established, it’s much more difficult.”
H1-B visas allow people with higher education degrees in fields such as science and technology to come to the U.S. and work. They can stay for as long as six years.
“We have a lot of clients in the biotech and tech industries,” said Vaani Chawla of San Diego-based Chawla Law Group APC, which serves many clients in OC. “Those are the areas that are severely impacted.”
H1-B visas have been a point of contention for years. Businesses say they need qualified workers they can’t find here. Local workers say companies have plenty of help in the U.S. to fill any position.
The issue of H1-B visas became more widely debated in the late 1990s as the technology boom fueled demand for global workers.
By the late 1990s, tech companies were lobbying Congress for a higher limit, and by 1999, they got it with a limit of about 115,000 H1-B visas, about double 1998’s count.
In 2000, the limit swelled to nearly 200,000.
But as the tech sector wrecked and the economy headed south, pressure moun-ted to reduce the number of H1-B visas as one way of protecting American workers. By October 2003, the start of fiscal 2004, the limit dropped to 65,000 visas from 195,000.
David Hirson, a lawyer with Frag-omen, Del Rey, Bernsen & Loewy LLP in Irvine, the world’s largest immigration law firm, said he estimates OC companies use about 3,000 of the visas, but would tap more if they could.
The limit needs to return to around 200,000 for the whole country to handle demand, he said.
“Our clients on the whole are doing all they can to get as many H1-B visas as they can,” Hirson said. “We’ve got clients who are backed up now, and they’ve just got to wait.”
Immigration lawyers are going to bat as soon as they can to get a share of the smaller pool of H1-B visas.
April 1 is the first day companies can apply to get an H1-B visa for the following fiscal year.
As the date nears, immigration lawyers ready their clients’ files for applications.
“We are rushing,” Chawla Law’s Chawla said. “We are rushing.”
When the caps first were reduced, all the H1-Bs were spoken for by Oct. 1. Last year, all the H1-Bs were gone by August.
There are a few ways to try to get around the H1-B cap, but they all have restrictions for local companies.
“They’ve got to seek alternatives that really are not the right fit,” Jackson DeMarco’s Franks said. “They’ll make them fit because they don’t have a choice.”
Companies with operations in other countries have an option,the increasingly popular L-1 visa.
The L-1 lets workers get an intra-company transfer from a foreign facility to a U.S. operation. Once they’re here they can work for up to seven years if they get a couple of extensions.
But workers must put in at least one year at the foreign operation before transferring. Also, the foreign operations must have at least 50% U.S. ownership.
Another L-1 option is for those who are among the best in their fields. Some of the measures used to acquire this visa could include publishing in a journal that is peer-reviewed.
But when an L-1 visa expires, the worker must leave the U.S., regardless of whether that person still is in pursuit of a “green card,” or permanent resident alien status. With an H1-B, a foreign national can renew the visa while pursuing a green card, Fragomen Del Rey’s Hirson said.
For foreign nationals earning their advanced degrees in the U.S., the government sets aside an additional 20,000 H1-B visas.
A handful of countries have some special arrangements with the U.S., giving some candidates unusual advantages.
Because of special trade agreements, Singapore and Chile get exclusive access to 5,600 of the approximately 65,000 H1-B visas. These are rarely all used, so if a worker is coming from one of these countries, he or she has a much better chance of getting here.
Australians also have access to another 10,500 H1-B visas that are separate from the 65,000 worldwide cap, Hirson said.
And because of the North American Free Trade Agreement, Canadians and Mexi-cans have more access to getting work permits here.
Lawyers noted that none of these options take care of the real crush of people coming from India and China.
Another option is for foreign nationals to set up some kind of consulting business near the U.S. company. Hirson noted any off-site employees need to be under the control of the company they’re working for.
All this makes for a lot of extra work and expense, but companies are willing to do it, said Jeffrey Wang, founder of Wang, Hartmann & Gibbs PC in Newport Beach.
“The employer has to think creatively,” Wang said. “We’re dealing with an entirely new ballgame.”
