Companies might find ways to avoid Trump’s new $100,000 visa

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The Trump administration’s plan to implement a $100,000 fee for those chosen for a high-skilled worker visa is stirring uncertainty among employers and could spur them to seek other paths to acquire highly skilled workers abroad.

The H-1B visa is popular among tech companies, with Amazon, Microsoft and information technology contractors like Infosys and Cognizant among some of the largest users. But organizations in industries like health care, education and nonprofits may also be impacted depending on the details of the policy, immigration attorneys said.

The new policy is probably going to create bottlenecks for talent at a time when the United States is in “an intense technological competition,” said Dan Wang, professor of social enterprise at Columbia Business School. “The need for talent and skills has never been at a bigger premium.”

Companies that can’t find qualified U.S. workers could resort to seeking alternative visas for immigrant workers, partner with companies offshore for talent, open more offices and subsidiaries abroad, hire contractors or have them work remotely while they apply for permanent residency, attorneys and advisers said.

Ted Chiappari, head of Duane Morris LLP’s immigration law group, said employers are deciding whether to freeze H-1B hires, change processes or “roll the dice and file without the $100,000 and hope it squeaks through.”

Here are some alternatives for employers seeking H-1B workers.

Offshoring

Companies that don’t want to deal with work visas could simply look to offshore the work. And that’s historically been the pattern, said Britta Glennon, assistant professor at the Wharton School of the University of Pennsylvania and research fellow at the National Bureau of Economic Research. For example, in 2004 the H-1B cap was reduced by more than 65 percent after the temporary cap raised by the American Competitiveness in the Twenty-First Century Act expired. Companies started building more foreign affiliates and hiring more people at foreign offices, she said. But this strategy only works for larger organizations with the capital to do it.

“The idea is you try to hire an immigrant in the U.S. and you can’t … so you say ‘I’m done dealing with this’ and set up an office in China or India,” she said. “That’s a major strategy a lot of big firms are using.”

Companies could consider hiring workers or contractors remotely from firms that provide the talent. Former Uber executive Carrol Chang now runs a marketplace to help connect employers to engineering talent. The company, called Andela, has been operating since 2014 with workers spread across over 135 countries.

“COVID showed us that companies and hiring managers can get comfortable with the idea of remote work in ways they had never envisioned before,” Chang said. “This [visa] fee hike is part of the broader conversation of whether work can be borderless.”

Alternative work visas

There are alternative work visas that companies could seek for skilled immigrant workers.

• O-1: This visa is reserved for workers with “extraordinary” abilities in sciences, art, education, business or athletics. The visa has a higher bar as employers have to show that an employee is at the top of their field, said Priyanka Kulkarni, a former H-1B holder and Microsoft AI leader who is now founder and CEO of business immigration provider Casium. Still, the O-1 is growing in popularity with 19,457 workers receiving the visa last year, more than double the number in 2020.
• TN: Workers from Mexico or Canada could be eligible for this visa as a part of the United States-Mexico-Canada Agreement, formerly known as the North American Free Trade Agreement.
• H-1B1: The U.S.-Singapore Free Trade Agreement and the U.S.-Chile Free Trade Agreement, which took effect on Jan. 1, 2004, created a new class of nonimmigrant work visa for those from Singapore and Chile.
• E-1 or E-2: Workers from countries that have a U.S. treaty of commerce like the United Kingdom, France or Germany might be eligible, but the visa doesn’t include China or India. Workers employed by companies owned and controlled by nationals of treaty countries might also be eligible for E-1 or E-2.
• E-3: Specialty occupation visa for those from Australia.
• L-1: Companies may hire people to work at their foreign subsidiaries for a year and apply for this visa reserved for intracompany transfers.
• OPT: For international students who receive science, technology, engineering and mathematics degrees and are selected in the H-1B lottery, companies could buy time by having them use their extended three years of optional practical training before submitting the application, said Enrique Gonzalez, co-chair of Fragomen, Del Rey, Bernsen & Loewy LLP.

“Some are better options than others depending on the individuals, their work, where they are in the organization chart,” Jorge Lopez, chair of global mobility and immigration practice group at Littler Mendelson P.C. said.

Green cards

Companies willing to hire workers remotely at least temporarily could also choose to go straight for a green card application, expediting that process versus applying for an H-1B first.

Depending on a person’s nationality, it could take a couple of years or more than five, Gonzalez said. But they could also turn to the “Einstein visa” or the EB-1A, which is reserved for those with “extraordinary” abilities, “outstanding” professors and researchers or certain executives or managers. Kulkarni said often tech workers are unknowingly eligible for this green card, which usually has a shorter wait time.

“There’s a lack of awareness around it,” said Kulkarni, who got her green card this way despite first thinking she wouldn’t meet the criteria. “If you are a founder you typically have built [the qualifications] up.”

For now, most companies are waiting to see what new details roll out and whether Trump’s executive order is litigated, attorneys said.

“We’re only in the first 10 minutes of a three-hour movie,” Gonzalez said.