If you happen to be running a tech company over the past year you probably had your team working remotely from different corners of the country and even internationally. The now proven ability to work remotely has eliminated the need for a physical office for many smaller and medium-sized tech companies. In addition, the diminished importance of physical distance has allowed teams to be build based on skills rather than on an availability to work at certain location. As a result, many tech companies have assembled teams that are comprised of employees who work remotely within the U.S. and independent contractors that work remotely in their home countries. As the COVID-19 pandemic is receding the managers of those combined teams must make important decisions for the future of their companies.
First many of the independent contractors abroad would not be satisfied long-term with their contractor status. Many of them are concerned about the immediate situation in their home countries with a large part of the world still in the grip of the pandemic and facing economic crisis and civil unrest. Even after the short-term situation improves, many IT professionals from the developing world will want to relocate to the U.S. to provide their families with better education, safety, access to vaccines and healthcare, and opportunities in life. In turn companies that are willing to sponsor their remote employees a work visa or a green card will retain the employee’s loyalty, dedication, and skills, getting ahead of competitors in terms of talent. To address the issue tech companies, have several options to bring their remote workers in the United States:
- H1-B work visa – this is an obvious choice as it allows a U.S. company to sponsor a foreign worker with specialized knowledge to come to the U.S. for an initial period of 3 years with the possibility to extend for 3 more. The biggest problem with that type of visa is that it is available in limited numbers. There are 85,000 visas available with 20,000 of them reserved only for those with master’s degree or higher. In recent years only 20-30% of the submitted petitions were selected to apply through a lottery system. The application process starts in early March and the earliest workers can start employment at the beginning of each fiscal year on October 1st.
- L-1 intracompany transfer visa – this program allows companies that have operations in the U.S. and at least one more country to bring an employee in either executive/managerial capacity or with specialized knowledge. The requirement is that the employee worked for at least 1 year in the preceding 3 years for the sponsoring company outside the U.S. Employees with specialized knowledge can stay up to 5 years on L-1 while managers and executive can stay up to 7 years. The visa is renewable in 2-year increments. The real advantage of the L-1 is that it is not subject to caps like the H1-B. This visa can be especially attractive to tech companies that have team member outside the U.S. However, for it to work the company has to make sure that it has properly established its operations abroad and that it has a qualifying employer-employee relationship with the team member who is to be sponsored. To do that we recommend engaging an attorney early in the process to advise the company on how properly to set up operations in order to be able to sponsor L-1 visas.
- O-1 visa – for foreign IT professionals that excel in their field the O1 visa is a viable option. The O-1 visa is generally available to individuals with extraordinary ability in the sciences, arts, education, business or athletics. Extraordinary ability must be documented with evidence of awards received, published material in major media and the like. The visa is not subject to a cap like the H1-B and there is no requirement for the team member to have worked for the sponsoring company before. This visa is initially granted for 3-years and can be renewed indefinitely in 1-year increments after the initial period.
Besides the visas listed above there are other options for tech companies to bring their remote foreign workers in the U.S. For example, the TN visa is available to citizens of Canada and Mexico that work certain professions, including technical ones, to come work in the U.S. for an initial stay of up to 3-years which can be renewed indefinitely. Another example is the E-3 visa, which is similar to H1-B but without a cap limit, and is available to Australian citizens only. In addition, a tech company can choose to bring a worker by directly sponsoring a green card through employment. Most often companies choose to start that process once the employee is already in the United States.
There are many considerations both legal and tax related that could be hindering the ability of tech companies to bring in their remote team members from other countries. The fact is that legislation, as related to immigration, has not kept up with the reality of the post-pandemic work environment and is not likely to adapt anytime soon. As tech companies’ managers are focused on achieving results seemingly small details that matter big for immigration can be left overlooked. Such details can be the establishment of employer-employee relationship versus independent contractor or what does it mean to maintain operations in another country. Is merely having an office abroad satisfying requirements for an L-1 intracompany transferee visa or there is something more? To address these questions and to develop consistent work visa policy we recommend that tech companies engage a competent business and immigration law firm. A well-developed work visa policy can be a competitive advantage to any tech company that is looking to attract and retain the best talent regardless of their country of citizenship.
How can Malescu Law assist?
If you are a tech company considering to bring in your remote team members from abroad, our experienced business and immigration lawyers in Miami, Florida USA can assist you with the visa options. Our immigration lawyers in Miami, Florida USA can discuss the visa options for your foreign workers to come and work in the USA, work with the company to develop a strategy and plan suitable for your needs, and prepare and file all visa applications and renewals.
Malescu Law P.A. – Immigration Lawyers