[Global Immigration Insights #10] H-1B Cap Edition ??

Hey there! It's been a few weeks since our latest global immigration update. The first in 2023!?

This one is jam packed on H-1B?related info.

Keep reading:?

As yet another Cap registration/lottery period is upon us, now is the time to be proactive when planning for the possibility that an applicant may not be selected.?

When an applicant is not selected and other US immigration options have been exhausted (or are just not suitable), our recommendation is to consider employing the foreign national in another country.?

Here are three important points to consider when assessing whether it is feasible to place an employee abroad:

Consider where the company has affiliate offices abroad allowing them to sponsor and employ a foreign worker. Alternatively, is utilizing an employer of record (EOR) an option.

Calculate how much longer the foreign national has until their US immigration status expires to determine how soon an alternative immigration process should begin.

Discuss the long-term intentions of the employer for their foreign national – here are a few examples:?

1. Do they wish to keep them working on their US projects while “parked” abroad??
2. Where will payroll be placed??
3. Will they attempt another H-1B cap case in next year’s lottery??
4. Is returning to the US after one year of employment abroad via the L-1 category viable??

To elaborate further on each point:

1. Often times we see that employers will need their foreign worker to remain on US based projects/duties while being placed temporarily abroad. In many countries such an arrangement is permissible in certain immigration categories. While there may be requirements for the employee to be placed on local payroll there are often no restrictions surrounding the worker continuing to perform his US duties. In fact, this scenario is quite common with global organizations where roles are regional or even global in nature and require collaboration across teams.
2. When considering placing an employee in another country, employers should always review where the payroll will be processed. Each immigration category has specific requirements around where the foreigner’s payroll must be processed, although some categories might be flexible enough to allow for either home or host country payroll. There are also tax implications to keep in mind with payroll location.?
3. If the ultimate goal is to employ the worker in the US, then employers need to consider if it is viable to attempt 2nd and 3rd (or more) H-1B Cap registrations. This is something to be reviewed between the US immigration attorney and employer. However, from our global immigration perspective, we often see employers decide to “bridge the gap” between a foreign worker’s US status expiration by placing them abroad until they are successful in the H Cap lottery. Alternatively, employers will often access the L-1A/L-1B category for returning to the US, which leads to my last point…
4. Generally speaking, after one year of employment (and payroll) abroad with an affiliate entity, a foreign worker may be eligible for the US L-1A/L-1B category. This is a very common strategy with our clients who intend to employ a worker overseas for one year (or longer) with the possibility then being that the worker could return to the US on an L permit.?

Finally, please bear in mind that with any immigration process for any country (generally speaking), there must be a genuine vacancy/role being filled by the foreign worker.?

It is not a good practice to place a foreigner in a role solely to align with future relocation/immigration preferences.?

That being said, the intra company transfer (ICT) immigration category in most countries is very flexible as it is intended for global organizations to be able to move their workforce around the globe as benefits the organization.

For that reason, the ICT category is quite accessible for those who qualify, and is often utilized in situations where the ultimate intention is to move the employee in future.?

As always, if your organization or clients require “pre-decision” planning during this Cap season, please do reach out. We are available for consultations to provide information on alternative global work locations.?

On a personal note:

After months in Europe, I'm back in North America. It's a bit chilly, but great to be living and working in the same time zone?as most of you.?

I'll be in Vancouver for the rest of winter but my plans have me across the United States - including ERC in Boston this October.?

Stay tuned for more details. If you're reading this and want to grab coffee this year in North America -- chances are I'll be near your town soon. Reach out!

Michelle LePage

Founder, Global Mobility Partners

Writing from Vancouver? ????