Rebuilding the Skilled-Worker Pipeline Using H-1B Visas

​As many manufacturers and large corporations know, the U.S. workforce is hemorrhaging experienced talent. The COVID-19 pandemic has caused many in U.S. skilled labor to take a step back. As early retirements become more prevalent, entire employment sectors are left scrambling to find replacement talent.

Many employers are taking a second look at foreign labor and using the H-1B visa program to reinvigorate their skilled-talent pipelines. With "specialty occupations" requiring at least a job-related bachelor's degree—or the experiential equivalent—companies can source health care professionals, attorneys, engineers, chemists, computer systems analysts, computer software developers, researchers, and budget and data analysts from outside the U.S.

The H-1B visa category is for temporary employment for foreign professionals. U.S. employers must pay H-1B workers the prevailing wage for their occupations in their geographical area. Generally, a foreign worker may be admitted in the H-1B classification for a maximum of six years, with the U.S. employer initially petitioning for a validity period of up to three years. There is an annual statutory limit of 65,000 H-1B visas available and 20,000 additional visas for foreign professionals who graduate with advanced degrees from U.S. educational institutions. Nonprofit institutions that are affiliated with higher education organizations, and some schools and universities, are exempt from these statutory limits.

Pipeline Problem Solved? Not So Fast.

To administer this process, U.S. Citizenship and Immigration Services (USCIS) has implemented a two-step lottery process, known as the cap lottery, which awards the limited number of H-1B visas available. First, U.S. employers create an account on the USCIS website and electronically register a foreign professional. USCIS conducts the H-1B cap lottery between March 1 and March 18. Second, after the lottery selection, which takes place around March 31, U.S. employers have 90 days to prepare and file an H-1B petition with USCIS on behalf of the foreign professional.

For 2022, USCIS has announced that the lottery registration period for the fiscal year 2023 lottery will begin at noon ET on March 1 and run through noon ET on March 18. Employers who wish to enter foreign workers in the upcoming H-1B cap lottery should begin the process as soon as possible.

Use HR Best Practices to Achieve the Best Results

Employers should work with their hiring managers to determine whether the offered positions qualify as a specialty occupation. This could include drafting detailed job descriptions; job duties; and knowledge, skills and abilities requirements, as well as educational or experiential requirements. Work with employment and immigration counsel to determine the minimum or prevailing wage that must be paid to H-1B workers in your identified specialty occupations. Identify specific worker candidates that the employers wish to sponsor for the fiscal year 2023 lottery registration, then safely and securely collect their personal biographical information for the lottery registration. Employers should also work with legal counsel to assess the sponsored foreign national's current immigration status to ensure the individual's eligibility for an H-1B visa.

Other Ways the U.S. Visa System Can Boost Your Talent Pipeline

Although the Great Resignation has been a wake-up call for U.S. employers, appropriate and increased utilization of our country's visa system might be a silver lining. Other avenues to source talent, including qualified professionals, skilled and nonskilled workers, should be considered, including:

• Sponsoring foreign nationals who are working for you abroad. Whether they are at a parent or affiliate company, or they are working at a foreign subsidiary in an executive, managerial or specialized knowledge position, make the L-1A or L-1B intracompany transferee visa work for you.
• Sponsoring Canadian and Mexican professionals who qualify for a TN visa.
• Employing foreign students who have recently completed, or who will soon complete, courses of study on an F-1 visa at a U.S. college or university and qualify for a one- or three-year period of optional practical training in the U.S.

Next Steps for Employers

When considering the relatively low cost of sponsoring a foreign national for the H-1B cap lottery, and the ongoing shortage of available and qualified U.S. workers, more large employers should consider using the H-1B visa as a tool for recruiting highly skilled professional workers who bring innovative ideas and in-demand knowledge of the latest trends and processes to the job. As the March registration period for the fiscal year 2023 cap lottery is quickly approaching, interested employers should act now to learn more about the H-1B visa process.

Bradley M. Harper is an associate at Shipman & Goodwin LLP practicing in immigration and employment law. Brenda A. Eckert is a partner at Shipman & Goodwin LLP and head of the immigration law practice.