As the tech industry continues to sprawl into uncharted territory there is a growing demand for workers. But getting the visas required to bring in the necessary people to fill jobs is no simple task. On this episode, we discuss the different types of visas available for the tech industry, strategies for getting those visas and issues affecting the process.
There are four distinct categories of visas for the tech industry:
1) H1B for temporary or non-immigrant professional workers with specialized/technical knowledge.
There are two types of Green Cards that the H1B can lead to:
2) O1 – Extraordinary Ability
3) L1 is an intra-company transfer work visa.
4) Investor Visas
What is the Labor Certification Process?
Read the Full Article
Dave Kelso: Hi there, welcome to OnlineVisas.com: The Immigration Show. I'm your host Dave Kelso here with CEO of OnlineVisas.com, Jon Velie. Jon how are you today?
Jon Velie: Hi David, I'm doing great. How are you?
Dave Kelso: Well I've got some things. I've been reading the news lately. It seems like the tech industry in the United States is on fire lately. I was reading a new survey that the tech industry is the number two economic driver in the United States. I was also reading that unemployment, just yesterday the numbers came out, we are at virtual total employment in the United States. But the H1B or tech worker situation for the tech industry is not as healthy as it should be because it seems to me we need to recruit a lot of people.
Jon Velie: For sure.
Dave Kelso: Now there are a lot of... I know you do a lot of work with the tech industry.
Jon Velie: Yes.
Dave Kelso: And I know that there are a lot of visas for the tech industry. Can you start me with a little bit of the background and what are some of those visas?
Jon Velie: Well visas for the tech industry is divided almost like visas are across the board, but let's talk about them. We'll put them in three chunks. There's the H1B, which is for professional workers now. Those can be computer engineers, architects, developers. Those types of people that are needed and have a degree to do this - have technical knowledge. Then the Green Card that they go to is typically the Labor Certification driven EB2 or EB3. EB2s are for advanced degree professionals, people with more than five years experience and those that are internationally recognized as exceptional. The EB3 can be skilled or unskilled, so if they have a mere bachelors degree they can fit in that category. The labor cert, and we'll talk about what it takes to do that. There's an entire process of recruitment.
Jon Velie: The other section we can talk about or another section we can talk about is the Extraordinary Ability folks, those are the O1 Visas and they lead to the EB1-1 Extraordinary Ability Green Cards. In the third section or the next section after that we could talk about is the L1, those are for multi-national companies to send their executives, managers, and specialized employees, and the managers and executives lead to the EB1-3 or multi-national executives and managers. After that there are investors, so people who want to invest in tech companies and live in the United States. There is the E2 Visa for certain countries and then there is the EB5 Investor Visa as well.
Jon Velie: We'll break it down into those and we'll talk about the issues, strategies, and winning arguments for that.
Dave Kelso: And some of the good parts and hard parts of that. Now it seems to me that is a long list of visas available for the tech industry.
Jon Velie: Sure.
Dave Kelso: There's a lot to that, but I was reading that the tech industry in the United States is expected to have an employment growth of up to 13% by 2026, and that's outpacing employment growth in all the other sectors combined. You've got to be really busy. Which one of those categories that you just mentioned are you spending the most time in? Let's start there.
Jon Velie: Well it's funny that you say that. The demand is massive. We have created governmental intrusion into the ability of American companies to hire foreign workers in a couple of different ways. The H1B has a numerical cap. There are only 65,000 H1Bs available for university graduates.
Dave Kelso: How many applications do we get a year?
Jon Velie: Hundreds of thousands, so we have a lottery system. It's so bizarre that you have to apply for the visa... You can apply for the visa six months prior to a start date. Our dates are based on the fiscal year, which is October 1st. On April 1st, and the regulations say it has to stay open for five days, hundreds of thousands of H1B Visa applications go in.
Dave Kelso: It sounds like a miserable work week for somebody.
Jon Velie: Well it's sort of like the immigration attorneys version of being an accountant with April, so we all get very busy and we put them all in. It's very frustrating because you have to anticipate you're going to hire somebody at least six months before you hire them. It's going to take a lot of money. It's going to take a lot of time, and then there's a lottery. That lottery was about 44% last year of the people just to get through the lottery. They don't get the visa if they get through the lottery. Then they adjudicate, and the adjudications of the H1B Visa become much tougher from the last administration.
Dave Kelso: So if you make it through the lottery you're not the visa, we're just going to hear your case?
Jon Velie: Right, we'll adjudicate it then.
Dave Kelso: Wow.
Jon Velie: The adjudication became a lot harder. The statistics are all over the place, but one of the biggest jumps I saw was from some numbers in 2016, the last year of President Obama. There was an 88% approval rate for H1Bs. In 2017 it dropped to 59%. We saw it go back up a little bit after that, but a lot of people were scared to do it. We saw a lot of got you types of adjudication going on. Lots of things that were thrown at all of us trying to do these with surprises. For example, on March 31st of the first year under the Trump administration a memo came out. March 31st is the day that you have to send-
Dave Kelso: The day before you have to file.
Jon Velie: Well the day you have to file because you want it there on April 1st. It was a very innocuous memo that said that a new regional center was going to adjudicate it. They wanted to put a memo out and they saw that statistics said that computer programmers didn't all have university degrees. Here was one of the base types of jobs in the computer industry they said well it may or may not be an H1B. We scratched our head, well what does that even mean? We didn't see it until we started getting these things called request for evidence that are these issues where immigration takes some sort of question about the visa and you have to answer that.
Dave Kelso: Want to know a little more.
Jon Velie: Right, so how they use that issue was really around what the programmer was going to get paid or really it went to all different professions, any of them. They started looking at the wage level. There's a thing called prevailing wage. There are four levels in the prevailing wage. This is one of the issues on the H1B adjudication. What they said is that the Department of Labor said that this is a level one wage, and it looks like your jobs are too sophisticated for a mere level one wage and then they were denying cases based on that.
Jon Velie: What we did and other adjudicators did, and we had to figure this out while we're going, there was no recipe for this, there's no experience on it, was we went back and we said, "Look, the Department of Labor said these people met the prevailing wage, it's not immigrations job to go in and question any of that. They met it and that's it. We used experts to come in and discuss it. We used analogies that a brand new doctor was going to come in as a prevailing wage. That a doctor, didn't mean he couldn't do the job or she couldn't do the job as a doctor. A lot of these different analogies came out and we had some really good success rates on those and we figured that out.
Jon Velie: They started changing the way whether a job was H1B applicable under analysis of the thing called the OOH, the Occupational Outlook Handbook. We used to use a different database called ONET and then they said, "Well no it's only OOH, ONET doesn't work anymore." Of course there was no discussion of this is what we think we're going to do, which is typically how you change regulations. Now we're on a different database and so there's a lot of change going on.
Jon Velie: Figuring out which jobs meet it, getting better at what we do, playing chess with the government. I'm trying to get these things through, and so what a lot of us did is we looked at denials from other attorneys, other companies. I was dealing with a tech association, ITServe Alliance and asked for all the denials from various companies, various lawyers and spread it out. We saw there were five reasons why immigration was denying cases, and luckily when we figured out some strategies we got to a 95% approval rating the next year. Really only lost a couple and that was based on one of the other issues, which is third company processing. What that means is in the tech industry there are companies that will hire and train people and then help them go into a company like maybe Apple or Microsoft and say okay, this person's going to go in for a small time to help with this situation, the companies like it, there's a lot of need for them.
Dave Kelso: I don't work for Microsoft but I work for the company that works for Microsoft.
Jon Velie: Right, and so the USCIS started making that more difficult for these staffing companies, consulting companies being able to place people were they really the employer, were they not? That third company processing was a big issue and how to prove they had that. There was a lot of issues. We worked with a lot of tech companies to help them sort of redefine who they were, what their day to day documents look like to show that they were actually in control of their employees and had satisfactory supervision of them, things like that.
Jon Velie: These are the sort of issues that companies are having to deal with and what's interesting, and I make this analogy a lot in talking to tech companies, is that if you're in an industry and the government changes the regulations for your industry you go with it. Say you're in the petroleum industry and they say instead of drilling like A, you need to drill like B.
Dave Kelso: Sure, right.
Jon Velie: Then may cost some money, may have to retool, things like that. Well what happened to the tech industry is the immigration industry changed. So companies that were not maybe the petitioner of the H1B but the third party user, they didn't know that, they didn't know what to do about that, they're not comfortable with this sort of stuff. We've had to do a lot of education with companies on how to deal with the governmental regulation changes in immigration to help them get through this process. That has been the battle on into being in the H1B. Lots and lots of changes in the H1B. It's not the only ones but that's been a big one.
Dave Kelso: H1B approvals are going down across the board.
Jon Velie: Big time.
Dave Kelso: My question is are these highly skilled, degree or not, tech workers that the world is driving on right now, the world is code, if they're not coming here and the companies that need them here can't get them, are the companies that need them leaving or are the workers going to work for other companies in other countries?
Jon Velie: All of the above. India is glad to share its great workers with us. There's lots and lots of Indians in America and Chinese and Iranians and a lot of folks that have good STEM background, STEM science, technology.
Dave Kelso: Technology, engineering, and math.
Jon Velie: Right, so the STEM workers we need them to prop up this industry that's on fire. If you can't bring the workers here the companies aren't going to stop working, so India is benefiting as a country massively. There's a lot of growth over there of American companies going to India and setting up campuses there.
Dave Kelso: Because they can't get the workers here, they're going to bring the work to the workers.
Jon Velie: Right, and they're able to do that work for less. What's really ironic about this is that the administration that's saying, "We've lost all our manufacturing jobs. We need to bring our manufacturing jobs back," are making it very difficult to keep the tech jobs in America.
Dave Kelso: That drive some of the manufacturing jobs.
Jon Velie: Well I mean look. Here manufacturing here is the deal of who can do it the cheapest. Right, I mean we've seen it. America after World War II did a lot of manufacturing. Japan, when it rebuilt itself did a lot of manufacturing. China did a lot of manufacturing. North Korea wants to get into manufacturing. Vietnam, those sort of things. If you can pay people $1 a day you can get the manufacturing jobs. That's not what we're about in America, but here's the hottest industry with high paying jobs, really high paying jobs and for every H1B it's creating anywhere from two to seven jobs for Americans here.
Dave Kelso: Right, we've talked about that before.
Jon Velie: We're pushing these jobs some place else, we're losing not just that job but that persons manager, the executives, things like that. We're begging American companies to send their jobs overseas or forcing them to. That's what's been happening, that's the underbelly of it. It shouldn't be harder, it should be easier, but it is harder, so I mean creating these strategies.
Jon Velie: That goes into the Green Card. This is the section one. The Green Card for the H1B style worker is either the EB2 or EB3.
Dave Kelso: Sure, exceptional ability.
Jon Velie: Well exceptional ability for the EB2, which it also can be an advanced degree, and those are folks that masters degree, PhD's and things like that. That's one of them. They and the EB3 go through the Labor Certification Process. This is a process where an American company has to recruit in five different manners. You need the largest newspaper in the metropolitan statistical area.
Dave Kelso: Sure, they want to make sure the company is trying to hire American workers before they go overseas.
Jon Velie: They have to show, they have to prove it.
Dave Kelso: That they have tried diligently to hire an American first.
Jon Velie: Five different very specific manners. There's a really specific way that the jobs need to be advertised. They can't be tailored. What tailoring means is that I say I need to hire somebody in a blue jacket and a green shirt wearing glasses, happens to have your exact name, or speaks your language. It needs to be-
Dave Kelso: I got a job.
Jon Velie: Right, it needs to be where it's similar to what the industry typically requires. There's three or four different things. There's the thing called an SVP rating, that's a specific vocational preparation that may say for a computer engineer that that's either a bachelors plus two years of experience or a masters degree. That might be the SVP of that particular type of thing.
Jon Velie: They'll also look at how has the company recruited in the past? Have they always said it's a bachelors degree, now all of a sudden they want 10 years experience. Then the third thing is how does the industry generally do it? You can look at want ads for other companies. We're looking at all this and it's like walking a tight rope. How can we not make it tailored, how can we put that advertising out there, and see if an American comes forward. Now if an American or Americans come forward or even Green Card holders, the company doesn't have to hire that person, but they can't hire that foreign national. Or they can hire all of the Americans and Green Card holders that come forward and then also hire the foreign national.
Dave Kelso: [crosstalk 00:14:47].
Jon Velie: There's a lot that goes into that process. It's lengthy, but we've seen some priority dates get a little bit faster. That means the waiting lines have been a little bit less for some countries, but for other countries like India, which is a big... and China, which have a lot of people coming into tech industries are very, very long. We're looking at least 10 years to get through that process. Now if you're going through that process and you file it before the end of your fifth year on the H1B you can continue to extend the H1B out in perpetuity. Then that sort of creates a... people have to stay in the same company.
Dave Kelso: An uncertain environment.
Jon Velie: Yes it's tough but they've put some things in where you can have some mobility under the Clinton administration. You can move from company to company but you have to start the Labor Certification program all over again, advertise again, maybe somebody comes forward this time. Those are those visas and stuff like that. I'll quickly bang through the others.
Jon Velie: The O1 and the EB1 are extraordinary ability. We see a lot of that in the tech industry. We see a lot of it in Silicon Valley. A lot of-
Dave Kelso: There are some extraordinary abilities in Silicon Valley.
Jon Velie: There surely are, and so I've had a great deal of experience with folks that may be working at really great companies like Microsoft and they have a think tank called FUSE Labs where the best and the brightest go there and they have a Bill Gates award for who comes up with the best ideas. These best ideas come from their employees. A guy that was in there from China was like that, and they were doing the EB3 for him. At that time, because he's from China he was looking for a very long time. I did the EB1 for him. We got his Green Card in about six months, and then since that time he created four companies in his first year. He became a job creator.
Dave Kelso: Yeah he did.
Jon Velie: He was stuck working in a company and really needed to be out there doing those things. That's really a cool way to do it. There's a lot of technique around it.
Dave Kelso: That's where your experience 25, 26 years as an immigration attorney and solid gold Sports Illustrated visa brief covers comes in.
Jon Velie: Well it does help. We use experts to evaluate it. We just did one in virtual reality, and so there's some real niches that you can become very great at. It's a challenge to show somebody who's brand new at something, has become one of the best in the industry, but you can define what that industry is. There can be a lot of press and exposure and patents and other things that come out, so we do a lot of that. The EB1 is the Green Card that comes out of the O1. O1s can be extended as long as you're working in the industry. The EB1s typically have a faster time but there's been so much movement into the EB1 category they actually have a backlog now of them, and it's really meaning in most countries in the world that's about a year and three months before you can file the second part or the adjustment of status and even longer for India and China.
Jon Velie: The next one I'll talk about is the L1 and the EB13. These are for multi-national executives and managers. Some things and tricks about that are difficult with companies that are owned by 100% by somebody. Immigration has pushed back and said that those aren't employees because they can't be fired. We work with them to create-
Dave Kelso: It kind of makes sense though.
Jon Velie: It does, so but if you can create a board of directors or have some investment documents that indicate that somebody other than yourself can make a decision to determine your employment. Those are things we do to fix on those strategies. We have these discussions everyday on people that want to move their companies to America, and really it needs to have three tiers of employees, meaning executives, managers, and workers. You can't have a company of one. You really can't even have a company of three. You can't have one executive, one manager, and one worker.
Dave Kelso: And one worker.
Jon Velie: Why would you need to tell the manager to tell the worker what to do? Making those companies large enough, making sure they have leases in the United States to do business before they come up. Make sure they have business plans that are written to the Matter of Ho Standard, which is a case that says what they need to go into it. We inherit a lot of cases where the business plans are not Matter of Ho compliant, that there's not enough employees, and those sort of things. The strategy around how to bring your company to America is really critical for the L1, and then once that international company has existed for a year then you can go to the EB13 to get the Green Card. That can be a way to do it.
Jon Velie: Quickly going from that to the E2 Treaty investor. There are 33 countries, about to be 34 with New Zealand, that can invest into a US company. $100,000 investment and 50% ownership will get you an EB2. That with a business plan and a corporation, you've got a company in the United States, a business plan to run it, and a visa to do so. We help people on those a lot. That can sometimes turn into the EB5, which has either a half a million dollar investment requirement or a million, depending on where it is, and that has been a law that's been in flux, it's been sunsetting out and then being reupped and stuff like that for a while. They want to raise the amount of that investment, which doesn't really make a lot of sense because both the investors and the people receiving the investment like the smaller amount to be able to get in and it would just run people out of the situation.
Jon Velie: That's really visas for the tech industry. Those are the various ones. We need them really badly right now to continue to keep our mantle of top in the world at this. But we can lose that lightening in a bottle.
Dave Kelso: Yes we can.
Jon Velie: Silicon Valley is a massive place and it's a great place and the environment there is fantastic, but so is Boston with the universities and money around that and of course New York has its hand in there and Chicago and Texas has been doing some great things. But it can go someplace else.
Dave Kelso: Sure, Vancouver's a great city too.
Jon Velie: India could be that new leader. Well it's just right there. Canada has had a huge increase in visas and in immigration, like a 200% increase on immigration.
Dave Kelso: I'm sure.
Jon Velie: Based on how difficult we've made immigration in our country in the last year.
Dave Kelso: Now if a tech company owner or a tech worker wanted to come here to the United States and bring their company here and employ Americans and make our economy grow, how would they get ahold of you, Jon Velie, CEO of OnlineVisas.com to lay out a strategy session? How do we get this ball rolling?
Jon Velie: Yeah, well OnlineVisas.com is a great place to go. Very excited we have almost 2,000 people a day come in to our site. We're fielding about 20 to 30 questions. There's a great chat service on there that they could just go through that process and then we could have a strategy session for them. Love to sit down and talk to them about what they're doing, how they're doing it. I've got a best selling book on H1Bs. Glad to send them out a copy of that and that breaks down a lot of different types of things that you can do in that particular visa. We talked about that stuff everyday, kind of like you and I are right now and would love to do that.
Jon Velie: You can also reach me at my email Jon@VelieLaw.com, V-E-L-I-E-L-A-W.com or give our office a call at 405-310-4333.
Dave Kelso: Right, or you can subscribe to our podcast channel on YouTube. You can find us on Facebook and LinkedIn as well. That's Jon Velie, CEO of OnlineVisas.com. I'm Dave Kelso. Thanks for watching this episode of the OnlineVisas.com, The Immigration Show.
Jon Velie: Thanks a lot. See you next time.