H-1B Visa Cap Global Alternatives: How to Plan Ahead

By Michelle LePage

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Transcript from webinar:

Thanks so much everyone for joining this webinar on H-1B Cap Global Alternatives. Just give it maybe another minute here as everyone trickles in, but if everyone wouldn’t mind sharing with me where you’re calling in from and what you hope to get out of this webinar, you can just post that in the comments section here and I can see it and I’ll try and cover everything that helps answer your questions. I know this is a q and a session. I’m going to start though with just giving a bit of background on the topic and hopefully we can kind of cover some questions you had in mind that way. And then at the end of the session I’ll share some pre-submitted questions for everyone and then we will open it up for your questions.

Okay, so we’ll go ahead and get started. So this webinar is on H-1B Cap Global Alternatives and ways that you can plan ahead. For those of you, I know we have a lot of US immigration attorneys that signed up for this session. So for those of you that are US immigration attorneys and have clients that you want to plan ahead for, and for those of you that are HR or Global Mobility Professional at your organization, this is for you as well and ways you can plan ahead for your employee population. So just to start a little bit of back about me, for those of you that don’t know me, my name is Michelle Page. I’m the founder of Global Mobility Partners or G M P I have just over 10 years of experience working in the global immigration field. I worked for over seven years on a global team at Frag and I started GM P about four years ago.

I have supported hundreds of companies ranging from startups to Fortune five hundreds with their global immigration needs and I’ve coordinated immigration processes in just over a hundred countries around the world and a little bit about my company G M P. So we work with law firms and with corporations to manage their immigration outside of the us. So like I mentioned earlier, there’s two groups here. I know we have both on the phone. So for those of you who are US immigration attorneys, this is for you to help your clients plan ahead and consider global alternatives when your foreign national isn’t selected in the H-1B Cap. Also, of course for organizations and employers for your employee population.

So just to kind of set the tone for this topic, so what is global parking or for this conversation, what is H1B Cap Global parking? So it’s a term used to describe relocating employees abroad. Specifically for this topic, those who aren’t selected in the H-1B Cap registration, this is something that we see a lot of need for year after year. For those individuals who aren’t selected in the hCap, it’s a good option for employers to consider and for us immigration attorneys to consider for their foreign nationals. In the event that a alternative US visa type isn’t suited for their particular situation, you might want to consider placing them abroad like in Canada or Mexico or Europe or Asia. So a common example I see a lot of, because we’re in the US is employers will often have an entity in Canada and will choose to send their for national to Canada typically on an intercompany transfer type of visa, which I’ll talk a little bit more about here later in the session, but just this is a great option. The concept of global parking is important. It’s something I talk about all the time because I find that employers don’t often consider it other than parking the person in their home country. There’s other options. They can move them to another country that’s not their home country and I’ll explain a bit more about how they can consider that option.

So are you prepared if your client or employee isn’t selected in the Cap registration? So for those of you who are US immigration attorneys, I know that you guys are usually very prepared and have a plan B in place for accessing another visa type for national, but where we come in is suggesting that a plan C be put in place for the employee to be placed abroad. There’s lots of different ways to do this, but time is generally of the essence when it comes to someone’s US expiration coming up. And so I always recommend to start sooner rather than later, not necessarily starting on an immigration process, but just consi having the conversation internally with the organization, with the foreign national, with the foreign nationals management team, with HR to understand if it’s even possible and a preference for foreign national to be placed perhaps temporarily in another country.

We’re of course available to schedule a consultation with you and your clients to review what options might be available to them. So just to help get the conversation started, there’s three things that I suggest considering for employers when they’re assessing the viability of placement abroad. So the first is right off the bat I always want to check do they have affiliate offices abroad? This is important to understand because most countries have an intercompany transfer immigration category similar to the L one in the us and this is a very accessible and favorable immigration category in most countries and is generally going to be the easiest way to get the foreign national to another country for a temporary or long term period. For smaller companies that just have a presence in the us, they don’t have any offices at all in any other country, then we can look at if they’re willing or able to use an employer of record or e o r company.

I’ll talk more about what this is on the next slide. The second point to consider is the applica applicable immigration process timeline that was chosen going to fit with the upcoming US status expiration. So this is a course I important to compare. Is the person going to be expiring in June or July or no what month this year and based on the destination country that was chosen for the foreign national and the applicable visa type processing time, is it even going to match up at all or do we need to consider something else, which I’ll talk about more on the next slides. And then the third option to talk about and consider with your population is do long-term intentions for the employee fit with the placement abroad. I’ll talk about this a bit more as well on the following slides, but what I mean by this is primarily do you the employer, the US immigration attorney plan to try and bring them back to the US in one year on the L one category.

So like I said, considering where the company has affiliate offices abroad, allowing them to sponsor an employee, that foreign worker is important. So just to touch on that a little bit more, the intercompany transfer category that I mentioned is really going to be the most accessible visa category. Generally speaking for in most countries, most countries have the comparable L one category In some fashion that should be considered of course only applicable for those employers that have an affiliate office in that destination country. So an example here would be Ireland. So for Ireland there is an inter-company transfer category. Another example is Canada, there’s an inter-company transfer category. And generally speaking, I’ll talk a bit more about this in the following SI slides, but generally speaking, the payroll location is going to be flexible for whether the employee can remain on the US payroll or whether they need to be moved to the host country payroll.

And then if there’s no affiliate office abroad, we need to look at an employer of record or e o R company. So for those of you that aren’t familiar with this concept, there are quite a few companies that are employer of records and basically they are going to be able to hire and payroll your employee in the destination country and sponsor them for the work permit that they need to have to be able to work in that country. They then will contract or outsource that person back to you so that they’re working on your projects and reporting to you.

Okay, and then the third point, our second point on when to cover is calculating how much longer the foreign national has until their US immigration status expires to determine how soon we should get started on the destination country’s immigration process. So this is something I see all the time that’s people wait until it’s too late or it’s difficult to get their new visa in time before their US immigration status expires. So just some examples here to help in understanding some common destinations, how long it can take. So processing times will of course vary by country and buy visa type, but Canada’s a common one and for an Indian national that’s applying in the US right now, the processing time is 14 weeks after filing. So it’s can pretty long and that doesn’t of course include the preparation time that we’re going to need to gather documents, make an assessment, prepare the application.

There’s often delays with getting information. So overall a lead time for Canada is generally going to be five months at least, if not six or seven. For Ireland it’s actually much faster Right now for an Indian national it’s applying in the US we’re looking at about six to eight weeks after filing. That’s honestly best case scenario. There are some nuances with Ireland that we need to consider. One being if the host entity in Ireland is a trusted partner with immigration agency in Ireland because this can speed up the processing time a little bit from what’s posted here. And again with Ireland and with any country we need to add on at least a couple of weeks for the assessment and document collection and case preparation stage.

And then the third and last point I wanted to make was discussing the long-term intentions of the employer for therefore national. So what I mean by this is one, do the they wish to keep them working on their US projects while parked abroad. So this is relevant because I get asked this all the time. When a person’s not selecting the H-1B Cap and an employer is considering moving them to Canada or Mexico, they generally want to not disrupt their work with their US-based team and the projects they’re working on. And so they want to know if, okay, I’m I move this person to Canada, I get the more permit there, they’re base there with my Canada office, but can they continue to do their US-based projects and work with their team in the us? The answer is generally yes and this is true for almost any country.

There’s generally no restrictions in the immigration regulations of most countries that would restrict the foreign national from being able to do this, being, working and having work authorization in Ireland or Canada or Mexico, but still having some function of their job be in the US and reporting to their US manager and working with their US team. I say that with a caveat. There are going to be for some countries and some visa types, additional nuances we need to consider and criteria that need to be met. They may need to also simultaneously report to a manager in the destination country where they’re working, but that doesn’t mean that they can’t also work for their US based team and their US manager.

Second point here is where will payroll be placed? This is a question we get asked all the time as well. Right off the bat, if an employer is considering moving their person to another country, they want to know if they have to move their payroll. Of course this can vary by country and by visa type, but generally speaking this is going to be relevant when understanding the long-term intentions for the employer and what they have in mind for their foreign national because it can be expensive and sometimes not an option for whatever reason for an employer to move payroll. And if the intention is to return the employer or the employee to the US after one year, then I find a lot of times employers don’t want to go through the process of moving their payroll for various reasons.

Another point here is will they attempt another H-1B Cap in next year’s registration? This is important for us to understand. I always like to ask this question when I’m going through an assessment with a client because it’s important for us to understand if they’re only going to be placed temporarily in the destination country for one year or so, this could potentially limit the options, the visa types that they would be eligible for. And what I mean by this is some visa types, some of their countries require a local contract be signed and that commitment of potentially two years, that doesn’t mean that the contract could be signed for two years. It doesn’t mean that the individual has to remain in country for that full two years and doesn’t have an option of withdrawing from the contract canceling their work permit and returning to the US If they’re successful next year’s it should B Cap lottery. But it is something we need to talk about and we need to have everyone aware of what the implications are and if this is the long-term intention.

And then the last point here is returning to the US after one year of employment abroad via the L one category viable. So again, like I was just saying, this is something we want to understand but for another reason because for some visa types it’s not possible for the employee to be moved to local payroll. And I understand for all your US immigration and attorneys, this is your wheelhouse. I know, but my understanding is that the main criteria for a returning on an L one is that the four national B employed and payrolled in the affiliate entity abroad for at least one year for example Ireland. This is there’s two main case types that we usually would access for intercom or for not intercompany transfers for employees moving to Ireland. One is the intercompany transfer and one is the critical skills employment permit. So the critical skills employment permit, it allows and does require actually that the foreign national be placed on local contract and local payroll, which I understand would then allow you to access the L one category in future.

But on the flip side, the intercompany transfer visa category, which is honestly more accessible and has lower threshold of qualifying criteria requires that the foreign national remain on home country contract and payroll. So this is really important for us to understand and for you as an immigration attorney to understand or you as an employer to understand it would be a shame to go through the whole process of getting them a visa type four Ireland or another country and then realize that it’s not going to work for your long-term intentions of returning them to the US in future.

So I hope that kind of sets the stage for what I wanted to talk about here and hopefully helps bring up some questions from all of you. If you guys could go ahead and just please send me your questions in the comment section, that would be great. I will take a look at them and I’ll try and answer as many as I can. If I don’t get to all of your questions then please feel free to DM me on LinkedIn or send me an email for those of us that aren’t connected. I’ll show a slide here at the end with my information. But while I’m waiting on your questions, I am going to go ahead and cover a few questions that were pre-submitted to us for this webinar.

So one here is can I place an employee abroad for work if we don’t have an entity in the chosen country? So I think I kind of covered this already on the earlier slides, but basically the answer is potentially yes, right? If we’re looking at an employer of record and the employer is willing and able to utilize an employer of record for their foreign national, then yes you don’t have to have an entity abroad to access this global parking concept for your foreign national. A couple other options I always want to talk about in consultations when this is the scenario for the client is kind of being more creative in reviewing how else you might be able to temporarily, temporarily place somebody in another country. So one, I know it’s kind of a hot topic right now is digital nomad visas. So something to consider and we would go through this in a consultation, is the foreign national eligible for the digital nomad visa in the country or they want to go to, of course you can always send them back to their home country. That’s an option.

But I think a lot of employers prefer for various reasons to not have to resort to that. Another option to consider is kind of more not work around solutions that maybe more creative solutions where can they send them and have them legal and compliant and just sitting in a country while working remotely for the US employer? So an example, this would be Mexico. Depending on the individual’s nationality, they might be visa free to Mexico or they might need a business or tourist visa, which can be pretty easy to get. And then Mexico has a pretty open-ended regulation that allows individuals to sit in their country and even perform work in their country so long as they’re not being paid and receiving compensation of any sort from Mexican source. So that can be something that’s a good option. Generally an individual can get up to six months of stay in Mexico and so a lot of our clients will access this as just kind of a stop gap measure sending them to Mexico while we sort out where else we can get them and they can sit in Mexico and of course work remotely for the US employer and not having disruption there.

I know there may be limitations with continuing to payroll them in the US which US immigration attorneys can confirm with your clients, but my understanding generally is that if they’re not physically in the US working physically in the US, it may be possible to continue the payroll without disruption.

Second question that came in here was can I keep the employee on US payroll while he or she is abroad? So I think we pretty much covered this one earlier, but the answer is going to be yes or no depending on the country and the visa type that is chosen for the foreign national. I always want to encourage employers that we generally are able to keep them on US payroll if that is a preference for whatever reason, there’s generally going to be a visa type that this is allowed and so I don’t want employers to think that it’s not possible to send ’em abroad because of this limitation that they may have.

And then the last question here that came in, are there tax implications for placing someone abroad? The answer is generally yes. So aren’t tax experts, I can’t speak formally to what the tax implications are for various countries. We get this question a lot. We always recommend that employers connect with an international tax expert to confirm what tax implications are. I always point out that generally speaking, most countries tax implications are going to be triggered after 180 days or six months of a foreign national being physically based in that host country. Okay, let me see here what came in on the questions.

Okay, so here’s one. Do you have E O R entries that you work with? Yes we do. We actually work with an E O R company Velocity that we recommend our clients for when they need e o R services. For anyone listening in here, I’m happy to connect you with our contact at that company and you can review with them kind of more in depth and understanding of what the e r concept is. Another question here, I’m not sure if I missed this, but what is the program called for parking in Mexico for six months? So it’s actually, it’s not a program, it’s just a really sort of accessible and honestly great option that employers should consider as what I would call like a stop gap measure. So there’s not a program or an application needs to be made to utilize this. It’s just that for the most part, foreigners going to Mexico for any purpose tourism business, even work are generally able to receive a six month stay allowance and without having any sort of visa or a work permit.

And so it’s a great sort of emergency option per se. If an individual’s US status is expiring just to kind of send ’em over to Mexico and have them sit there for a period of time while we sort out where else they can go. The important point here is that they can’t be doing work for a local entity or receiving compensation from Mexican entity without having work authorization. Otherwise the common scenario of just having them sit there working remotely for their US employer or an employer elsewhere and just sitting in Mexico as a visitor, they can generally do so for up to six months and then even better they can usually exit and reenter and get an additional six months. So that’s a great option. Something to keep in mind for those you that need sort of a stop gap measure in place.

Another question that came in here, if someone is not qualified as a manager or has specialized knowledge, would it be possible to move them back to the US in one year? This is more a question I think for one of your US immigration attorneys, but I think this is a question relating to the L one. So I’ll leave that for someone to Darrell. If you want to check with a US immigration attorney, they can answer that question for returning to the us. Okay, let’s see here. I’m trying to do another question or two with some of the foreigners going to Mexico for this parking process need a Mexican visitor visa or is Mexico more fluid and allows more countries to enter without a visitor or tourist visa?

Yeah, so basically this is going to come down to the nationality of the foreign national. So some nationalities require that you have a Mexican are required to have a Mexican visitor visa. Indian nationals for example, do require a Mexican visitor visa. But the other really sort of fluid or flexible thing about Mexico is that there are exceptions. So let’s say we have an Indian National, he needs a Mexican visitor visa to enter Mexico because of their nationality. If they have a valid visa or a residence card or permanent residence card for the us, Canada, any of the Changan countries, Japan and I believe one more, maybe Australia, then they are eligible to utilize that visa or a residence card to be considered exempt from needing a Mexican visa and can use that visa to enter Mexico. So Mexico is really flexible. Honestly, it’s a great option. A lot of our clients utilize this sort of stop gap measure. It’s important to maintain compliance with the foreign national going to Mexico, but it’s a really flexible option and for anyone listening, I’m happy to have a consultation and just confirm in writing for anyone who wants to utilize this option, what the four national canor do and just things to be careful of.

Okay, I think those are most of the questions. Like I said, please feel free to send any questions you have that didn’t get answered or that you think of after this webinar. Here’s my LinkedIn handle, here’s my email address. I would love to connect with all of you who I’m not already connected with and answer your questions. We can set up a consultation with you as an employer or for you US immigration attorneys with your clients and figure out if we can find a solution for parking the foreign national abroad. Thanks everyone for your time. Reach out if you have any questions and have a great rest of your week.

   
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