COVID-19, Remote Operations & Immigration Complexities May Lead to an Offshore Exodus

COVID-19, Remote Operations & Immigration Complexities May Lead to an Offshore Exodus

The COVID-19 global shutdown that is leading to a transformation from a typical workday at the office to a new remote workforce in nearly every industry, taken together with the recent executive orders banning American Consulates across the globe from issuing or renewing any H-1B and other, non-immigrant and immigrant employment visas are causing a pause to many of the nation’s largest employers about whether a workforce in the United States is even necessary.  With the uncertainty of the spread of COVID-19 and the ease of remote operations globally, American companies that have long relied on the recruitment to the United States of foreign talent through the H-1B nonimmigrant visa program, are now rethinking their immigration recruitment models.  The result has been increasing the consideration of offshoring certain operations to the countries that would have otherwise provided the foreign talent. 

The H-1B Visa & U.S. Employers

The H-1B nonimmigrant visa program allows U.S. employers to sponsor foreign nationals to temporarily relocate to the United States to work in a position that is deemed a “specialty occupation,” which federal law defines, in part, as a position that normally requires the minimum of a bachelor’s degree, or higher, in a specialty field.  Moreover, a “specialty occupation” requires a “theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor, including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts…”

Each fiscal year, the federal government issues no more than 65,000 H-1B nonimmigrant visas, with an additional 20,000 for foreign professionals who have earned a  master’s degree or doctorate from a United States college or university.  The H-1B program permits temporary employment for up to six years. 

To qualify for the H-1B temporary nonimmigrant specialty worker visa, an employer-employee relationship must exist, or the intent to enter into an employer-employee relationship if the H-1B petition is approved.  H-1B employers are required to pay at least the actual wage or the U.S. Department of Labor (DOL) prevailing wage, whichever is higher, and must seek certification of the job from the DOL through the filing of a labor condition application. Moreover, the foreign national’s field of study must relate to the job offered and must otherwise qualify as a “specialty occupation.” 

Last year, the top employers seeking many of the 85,000 H-1B visas for foreign recruits included Amazon, Apple, Cisco, and Deloitte, Microsoft, and Twitter.  American colleges and universities sought nearly 6,000 foreign-born professors, assistant professors, and researches, and thousands of requests for accountants, management consultants, and other positions by American companies in every state.

On June 22, 2020, in response to growing unemployment numbers from the COVID related shutdowns, President Donald Trump signed an Executive Order barring New H-1B foreign workers from entering the United States through the end of 2020, with very limited exemptions for individuals who are “essential to the U.S. food supply chain” or “whose entry would be in the national interest.”  Tens of thousands of new H-1B nonimmigrant visa workers who were set to commence employment in the United States on October 1, 2020, were now barred from entering, with their American employers left struggling to meet professional workforce demands in the midst of the COVID pandemic and limited American workers to supply the essential demand.

Offshoring Exodus?

With COVID-19 came the new norm of a movement to all remote operations for any employee that can remotely work.  Home offices were set up across the United States.  Foreign nationals working in the United States under an H-1B nonimmigrant visa were permitted to work remotely—whether in their home countries or from their homes in the United States.  With this began the transformation of the American workforce.  Office space, apparently, may not as necessary as once assumed.  It very well may be a thing of the past. 

Scrambling to meet their current workforce needs to be limited by President Trump’s Executive Order while developing robust, long term remote working operations, many organizations have begun to evaluate the offshoring of certain groups and departments.  This move, business leaders note, solves the uncertainty and complexities of immigration laws without having to forego foreign talent.  The obstacles to offshoring are many and often necessitate a significant investment for foreign office space, registrations, new management, training, and the like. 

One Pennsylvania technology company that was expecting four new H-1B nonimmigrant visa employees from India took a different approach, recognizing that remote operations create a global workforce from any city in any country and the talent of the H-1B employees.  The company did not turn away the four; rather, computers, wireless internet access points, and other necessary technology were sent from the United States to the foreign nationals.  Home offices were set up in India for each.  The four are now remote contractors, who can fulfill their responsibilities without ever entering the United States.  The Pennsylvania company, as with others, sees this as a transformation point, where remote operations serve to bring the global workforce closer and break the barrier that has been caused by increasing immigration restrictions.