Constructing a Successful Workforce: Hiring and Retaining Foreign National Engineers

According to the latest data from the American Immigration Council, foreign nationals make up approximately 23% of all science, technology, engineering, and math (STEM) workers in the US. In addition, in 2020 there were 17,854 foreign national students majoring in civil engineering, many of whom may wish to remain in the US and enter the US labor market. The following list provides some options for foreign national students and potential employers to hire and retain this valuable talent.  

F-1
International students in F-1 status may be eligible to work if granted Curricular Practical Training (CPT) while in school or Optional Practical Training (OPT) after graduation pursuant to a valid Employment Authorization Document (EAD).

As a matter of background, OPT allows F-1 students to work in the US on a full-time basis after the student has completed their studies in a field related to their major. CPT, in contrast, is temporary employment authorized by the school/program that allows an F-1 student to gain practical experience via an internship, work off-campus, or participate in a cooperative program that is directly related to the student's program of study before they graduate. Whether a student is eligible for CPT or OPT is up to his/her school. If granted CPT, the school would note the employer and such authorization on his/her Form I-20. Generally, CPT is granted for a maximum of 20 hours per week while school is in session (and 40 hours per week only during semester breaks).

After graduation, a student may be eligible for an initial 12 months of OPT, which can be extended for up to 24 additional months if granted by the USCIS and the individual has a STEM degree, the employer is an E-Verify employer and the employer/student complete a training plan.  

H-1B
Roles that require at least a bachelor’s degree or its equivalent in a specific field (like civil engineering) are eligible for H-1B status. The candidate would need to have a related degree (like a civil engineering degree). Timing for the H-1B can be challenging if an employer is looking to hire a recent graduate or someone outside of the United States for a role. Specifically, unless the individual has previously been in the US in H-1B status, they would be subject to the H-1B cap lottery, which means they have to win an H-1B number in order to file an H-1B petition. There is typically only a 30-40 percent chance of winning a number each year. If subject to the cap lottery, the employer would have to include the candidate in the H-1B cap lottery registration in March and can only file an H-1B petition if the registration is selected in the lottery. If the candidate is already in H-1B status with another employer then a new H-1B petition must be filed before the candidate can work for a new employer, but there is no lottery. H-1B petitions are employer, site and role-specific, which can be a challenge if the individual’s work location or role changes. 

TN
Under the United States-Mexico-Canada Agreement (USMCA), certain Canadian or Mexican nationals may be eligible to work in the United States in TN status. To qualify for TN status, the individual must be a citizen of Canada or Mexico, be employed in certain specified TN occupational categories, including engineers, and must possess the minimum qualifications for that position/occupation (generally, a relevant bachelor’s degree).  

E-2
The E-2 visa is an option for specialists/essential workers and managers if the US employer is owned by nationals of a country with which the United States has a treaty, including Italy, the UK, Germany, Canada, the Philippines and many others. A comprehensive list of countries is available at https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html. If all E-2 employer requirements are met in terms of ownership, investment and doing business in the United States, the employer can bring in workers as long as they are of the same nationality as the treaty country and qualify as a specialist/essential worker or manager/supervisor.

L-1
The L-1 visa category is for multinational employers and their employees. Generally, there are two types of L-1 petitions (L-1A and L-1B). For an L-1A petition, the candidate must have been employed in a managerial or executive role for at least one year within the past three years by a related company outside of the US and the proposed US role must be managerial or executive in nature. A position is typically considered managerial or executive if the individual has/will have direct/indirect professional reports (i.e., he/she supervises/will supervise roles that require at least a bachelor’s degree) or if the applicant oversees/will oversee a critical function for the company (usually with budgetary authority). The L-1B nonimmigrant visa category is available for foreign nationals who have been employed for at least one year during the past three years for a related entity outside of the US in a position where he/she gained specialized/unique knowledge about the company’s products/processes and who will be transferred to the US entity in a role that requires such specialized knowledge. 
 
While L-1 petitions are generally subject to high scrutiny, this could be a viable option for multinational employers looking to transfer engineers with specialized knowledge or in managerial roles. 

O-1
Those who have reached the pinnacle of their field and achieved either national or international acclaim may be eligible to petition for O-1 status to work in the United States. This could be a good fit for someone who is leading large infrastructure projects with a track record of success and discussion of their work. O-1 petitions do require a good deal of evidence, however, including referee letters. 

B-1
This is the most misused visa category for work in the United States. People in the United States in B-1 status are not authorized to work. This is true even if they are on a foreign payroll or being paid as a contractor. It is not a work-authorized status and should not be used, no matter how brief the assignment.

Green Card Sponsorship via Program Electronic Review Management (Perm) Labor Certification
The green card route most often involves demonstrating a shortage of US workers through an advertising campaign. The employer must identify the worker or workers to be sponsored, obtain an official prevailing wage determination from the US Department of Labor, post legal notice and conduct an ad campaign to demonstrate the shortage. Then, if no qualified, able, willing, or available US workers apply, the application for a green card can be filed. From beginning to end this process typically takes well over one year to complete and is followed by additional processing with the US Citizenship and Immigration Services and sometimes also the US Department of State, which can take additional months or even years. This is a good route for someone already in the US working for the employer in H-1B status. Alternatively, for individuals who can show exceptional ability or an advanced degree, a National Interest Waiver (NIW) could also be possible. For an NIW, the individual or employer would need to show that it is in the best interest of the US government to waive the requirement to complete the recruitment campaign. 

Conclusion
Given the growing number of foreign national engineering talent, it is critical that employers understand the options/limitations for such employment. While the current immigration system has constraints, including timing considerations, there may be options to consider, depending on the individual’s circumstances and the role.