What NH businesses need to know about the current state of visas when hiring foreign workers.
With the unemployment rate in New Hampshire hovering around 2.5%, many businesses are turning to foreign workers to fulfill their labor needs. Employment authorization options for foreign nationals depend on the type of position offered and the nationality of the worker. The following is a brief overview of the various visa categories available, as well as a discussion of the challenges in the current immigration climate.
F-1 Visa (Foreign Students)
The F-1 visa is available for foreign students to attend a U.S. college or university. If their program of study allows it, students may utilize Curricular Practical Training (CPT) to work for a U.S. employer while attending school. CPT is utilized for training related to a student’s area of study, similar to an internship position, and can be paid or unpaid, full time or part time. Otherwise, upon completion of the degree program, the student can apply for Optional Practical Training (OPT), which allows for up to 12 months of work authorization in a position related to the degree earned. If the degree is in a STEM field, the student can apply for an additional two years of OPT work authorization. While OPT can be unpaid, STEM OPT must be paid.
- Quick Takeaway: Foreign students are a great hiring option for NH businesses. They do not require sponsorship, and can work in any position (with CPT/OPT), so long as it is related to their earned U.S. degree.
H-1B Visa (Bachelor’s-Level Professionals)
The H-1B visa is available for specialty occupations, meaning those positions requiring a Bachelor’s degree or higher, both at the company and in the industry-at-large. Although these visas are a good option for NH businesses, they can be difficult to obtain because of the limited number of visas available. There is an annual quota (i.e. cap), which limits the amount of first-time H-1Bs to 85,000 in a given fiscal year (with 20,000 of those reserved for individuals holding a U.S. Master’s degree or higher). Each March, the U.S. Citizenship and Immigration Services (USCIS) conducts a registration lottery process through which it selects eligible foreign workers and their U.S. employers to submit an H-1B petition for an October 1st start date. If approved, the H-1B will be valid for three years, renewable for an additional three years.
It is important to also note that the immigration service places high scrutiny on the specialty occupation aspect of offered positions, meaning that certain jobs (e.g. Computer Systems Analysts, Web Developers, and others) can be excluded from qualifying. Furthermore, the H-1B process requires that a U.S. employer pay the foreign worker the higher of the actual wage or the prevailing wage for the position, which is determined based on the occupation and work location(s).
A beneficial aspect of the H-1B visa is that it is portable, meaning that a worker with an existing H-1B visa can switch employers relatively easily. The new employer can bypass the annual cap and file a change of employer petition with USCIS at any point, so long as the offered position qualifies as a specialty occupation. Furthermore, if the worker happens to be an Australian, Singaporean, or Chilean national, he/she is eligible for a reserved category of specialty occupation visas known as the E-3 (for Australia) or H-1B1 (for Singapore and Chile). For these categories, the U.S. employer can sponsor the professional at any point, similar to a portable H-1B.
- Quick Takeaway: H-1B visas are limited in number, but can be a good hiring option for NH businesses, especially if the foreign worker already has a portable H-1B visa (or is an Australian national qualifying for an E-3 or a Singaporean/Chilean national qualifying for an H-1B1). However, they are only for bachelor’s-level positions.
TN Visa (Professionals from Canada or Mexico)
The TN visa is available for nationals of Canada or Mexico, carved out as part of the USMCA (formerly NAFTA). Besides their qualifying nationality, the foreign worker must generally also be a professional in their field, and the offered position must fall into one of the prescribed categories (i.e. accountants, architects, engineers, etc.). The TN visa is a very favorable category, since there is no annual cap, and it can be renewed indefinitely. Moreover, there is no prevailing wage requirement like with the H-1B visa.
However, recent trade battles amongst the U.S., Canada, and Mexico have caused concern over the continuity of the TN visa. As of now, the category remains unaffected, but changes to the USMCA could alter the future of TN visas.
- Quick Takeaway: TN visas are a great option for NH businesses, but only if hiring a foreign worker from Canada or Mexico, and for a prescribed position category under the USMCA.
L-1 Visa (Intracompany Transferees)
The L-1 visa is available for foreign workers who have worked for a qualifying business entity (i.e. parent, branch, subsidiary, affiliate) outside of the U.S. for one year in the last three years. More specifically, the L-1 visa is available to employers needing to temporarily transfer an executive or manager (L-1A) or individual with specialized knowledge (L-1B) from a qualifying organization abroad to the U.S. entity. The L-1 visa is a good option for global companies, but it has its limitations. It is valid for three years initially, and can be renewed for another two years for L-1Bs (five-year maximum), and another four years (in separate petitions) for L-1As (seven-year maximum). There is no annual quota, minimum degree, or prevailing wage requirement like with the H-1B visa, but the scrutiny for L-1 visas is even higher than with the H-1Bs.
In the past five years, L-1B denial rates have steadily declined, falling from approximately 34% in FY 2019 to around 10% in FY2024. Though not as drastic, L-1A denial rates have followed a similar downward trend. It is yet to be seen how the current immigration climate will affect L-1 visas; though if history repeats itself, U.S. employers could be facing more obstacles to secure foreign talent from within their global company groups.
- Quick Takeaway: L-1 visas are a good option for NH businesses, but only if hiring a foreign worker who has worked one of the last three years for a qualifying business entity, and can qualify as an executive/manager or individual with specialized knowledge.
O-1A Visa (Individuals with Extraordinary Ability)
The O-1A visa is available to foreign workers possessing extraordinary ability in their specific field of endeavor. The O-1A can be a great option for U.S. employers looking to secure top-tier talent. Without position or wage requirements, the O-1A is an option for a wide range of occupations; however, the worker must demonstrate certain achievements (i.e. three from a list of prescribed criteria indicating national and/or international acclaim) to meet the extraordinary ability standard. If achievable, the O-1A visa is a very favorable category, since there is no annual cap, and it can be renewed indefinitely, so long as the company continues to require the extraordinary ability individual to work in his/her field of endeavor.
- Quick Takeaway: O-1A visas are a great option for NH businesses hiring highly-skilled foreign workers. There are no position restrictions, but the job must be in the field of extraordinary ability.
These are just a few of the most-used visa categories NH businesses can use to onboard qualified foreign talent. Since the available options depend on a thorough analysis of the offered position, as well as the nationality and qualifications of the worker, speaking with knowledgeable immigration counsel is necessary.