By Hendrik Pretorius, immigration lawyer and CEO at ImmiPartner
Well over half of graduate-level STEM students enrolled in U.S. colleges and universities studying computer science are international students. This is an incredible statistic, and the trend is similar in various other technical fields. The result, particularly in tech-heavy cities and for STEM roles, is that companies of any size seeking to attract the best of the best will undoubtedly have to grapple with and ultimately embrace the U.S. immigration system. This is even more important right now in the extremely tight labor market.
To compete, companies must assume that candidates in need of immigration sponsorship will apply whenever a job posting is made. Assuming you wish to be competitive in the battle for talent, there is a key piece of diligence that is rarely if ever built into a company’s recruitment workflow, that being the screening of every job postings from an immigration perspective.
Having worked alongside hundreds of companies as a corporate immigration attorney, I have come to understand that the following few considerations can truly make the difference in being able to get through the immigration process and actually onboarding foreign national talent.
Clear Minimum Educational Requirements
The most commonly utilized visa options available require proof that a position requires at minimum a bachelor’s degree in a specific field of endeavor. The government is known for issuing requests, causing significant delays and potential denials, focused specifically on asking companies to prove that an opening is for a "specialty occupation" by evidencing that an open position in fact requires at minimum a degree. This can be proven in one of four ways but often comes down to showing that the identified degree is a common requirement within the company for the position or that it is an industry norm. So make sure to clearly lay out the minimum degree requirement and then, of course, make sure you stick with it.
Clear Job Duties
Try to avoid vague, fluffy language in job postings. Using this will make any immigration filing more difficult. The government wishes to see clearly laid out job duties that at the end of the day support your assertion that the job requires at least a bachelor's degree in a field. It is common to have an immigration officer delay a case to ask for more in-depth detail about day-to-day job duties. This deep dive also often asks to see a breakdown of the percentage of time an employee would spend on each duty. So the ideal job description will be objective and detailed and will allow a clear line to be drawn connecting each duty and a specific course of study, thereby satisfying the government that the position is indeed professional in nature and qualifies for a visa such as an H-1B.
Understanding the Role of Occupational Classifications
As part of your workforce planning and recruitment practices, it is important to understand that any case filed for an H-1B or similar professional worker visa will have to be grouped, based on job duties, into an occupational classification pursuant to the Department of Labor’s Occupational Outlook Handbook. This handbook offers details covering typical job duties, typical educational background and more. The officer adjudicating a typical professional worker application, such as an H-1B visa, will reference this resource to see if the Department of Labor considers a position to in fact require at least a bachelor’s degree or not. This greatly impacts the path that a particular case will then follow. Note that there is a lot of relevant and useful information also provided via the Department of Labor’s O*NET system. Both of these resources are very useful in getting a sense of what the government thinks is normally required for a position so that you can at least anticipate challenges, processing timelines, costs and more.
Keeping these considerations in mind should go a long way in ensuring that you are doing what you can to reduce processing delays and increasing the chance of onboarding top global talent.
The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation.
Hendrik Pretorius is an immigration lawyer and CEO at ImmiPartner, guiding foreign founders and companies through the U.S. immigration system.