Going global: Sourcing creative talent across borders
Fueled by enhanced technology, increased mobility, and rapid urbanization across the globe, it’s rare to find a contemporary architectural practice that has escaped the challenges of an increasingly global profession. The race for talent, in particular, may be taking your firm to new locations to deliver work and recruit talent. Are you prepared to navigate the complexities of global mobility?
In the first of a two-part series, Andrew Caruso, AIA, explores the challenges of recruiting and retaining a globally sourced creative workforce with Lisa Ryan, partner at immigration and mobility advisory firm Fragomen Worldwide.
Why can immigration issues be especially tricky for architecture and design firms? How can firms mitigate these challenges?
Lisa Ryan: What generally sets creative industries apart from other industries can often lead to challenges from an immigration perspective: what makes someone creative is not always easy to explain as an easily definable skill. As an architecture firm contemplates staff mobility, it can be helpful to support employees in developing a specific expertise that distinguishes their talent through definable skillsets and objective criteria recognized by a government agency.
As firms and projects grow in size and complexity, it is increasingly difficult to identify the work of a particular individual. For example, there may be work permit or green card options available in the US to those who have incredible talent, but they require specific proof of that talent. Design awards are generally given to the firm itself or to a number of people who were involved in the project, which is often insufficient as evidence to establish the foreign national’s specific talent. Staffing foreign nationals on smaller projects where accolades or awards might more readily be attributed to the foreign national themselves—or, in larger projects, to position the foreign national’s specific work to be highlighted substantively—might better set them up for success in an immigration context.
Many firms describe challenges retaining senior and mid-career non-US talent during the H1-B renewal process. How can firms enhance the likelihood of success?
Ryan: Senior and mid-career non-US talent in the United States have already jumped the hurdle of having been selected through the H-1B cap lottery process. This, unfortunately, has become the single largest stumbling block for companies trying to hire foreign talent. Any status extensions for that individual would no longer be subject to the cap. However, there are several challenges to consider in the H1-B and green card contexts.
In an H-1B context, as well as the PERM process for permanent residency, the US Department of Labor proscribes what they believe to be the prevailing wage for a given position. This determination may pose some challenges; however, it may also be possible to include other forms of payment to comprise an individual’s total compensation package—such as guaranteed bonuses—to overcome any differential.
The H-1B also generally carries a six-year maximum period in which an individual can remain in that status before needing to depart the US for 365 days. In certain instances, it is possible to extend H-1B status beyond the six years, provided the individual has a green card application in process that has reached a certain stage. As an architecture firm builds its immigration policies and processes, it is important to ensure the maximum allowable time in H-1B status is tracked for every relevant employee, and that a process is in place to initiate permanent residency far enough in advance to ensure no disruption of employment authorization for these key people.
In the green card context, a firm’s top talent may qualify for an alternative to the labor market test—or PERM process—known as an Extraordinary Ability Petition, but compensation package is again a factor. With a demonstration of the individual’s extraordinary talent, the government expects extraordinary compensation relative to the industry.
In addition to retaining the diverse talent they have, firms also need to continue to build a pipeline of globally sourced team members. How can firms be more successful in retaining non-US graduates?
Ryan: Keeping student interns once they graduate can be much more challenging than retaining more experienced foreign talent. While recent graduates’ educational credentials readily lend themselves to applying for H-1B classification, four fundamental issues can restrict a firm’s ability to hire a recent graduate.
The single largest challenge to securing the services of a recent graduate is the H-1B cap, a numerical limitation placed on the number of new H-1Bs that can be issued across the United States in a given fiscal year. Currently, the limitation is set at 65,000 new H-1Bs per fiscal year, some of which are reserved for free trade agreement obligations with Chile and Singapore, with an additional 20,000 available for master’s degree holders or higher. The odds of getting a new H-1B petition approved are quite slim; as of recently, it hovered around 33 percent.
Since architecture is not considered a STEM field by the US government, architecture students also only have one opportunity to obtain a H-1B classification while holding optional practical training (OPT). While a firm could continue to petition for that individual in future years while he or she is outside the US, it is not always the most practical resolution for candidates beginning their careers. Other alternatives, depending upon the individual’s background, might include the TN (Trade NAFTA) or E-3 (for Australians).
In addition, the Department of Labor will proscribe the minimum wage threshold the individual must make to qualify for H-1B status. For recent graduates, this can be an issue. Other possible forms of compensation may be eligible for inclusion, so a thorough analysis should be undertaken by your immigration services provider.
Finally, to qualify for H-1B status as an architect, the US government mandates that licensing requirements be met in advance of filing the H-1B petition. This is not always an obstacle, as it is possible to file an H-1B petition for an individual who will be under the direct supervision of a licensed architect. It is generally recommended, however, to file an amended H-1B petition once the individual becomes licensed, which will be an added business expense.
In the second part of this series, Caruso and Ryan explore the issue of deploying US talent into non-US contexts as design firms increasingly follow clients into new markets and tackle urban challenges abroad.
Lisa Ryan has practiced exclusively in the field of corporate immigration and nationality law since 1994. She currently manages West Coast global operations for Fragomen, providing guidance on global initiatives, the development and implementation of global, regional or country-by-country immigration programs for clients, and immigration best practices.
Andrew Caruso, AIA, is an architect and international development economist. As a member of the AIA International Practice Committee Advisory Group and former AIA national board member, he is passionate about helping AIA members engage in issues of global practice and development. He is currently Director of Strategy & Operations for Urban Solutions at Hatch, consulting for private and public-sector clients facing rapid urbanization in emerging markets.
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