Agencies face a visa crunch

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U.S. advertising agencies have to be able to hire the best and the brightest talent, regardless of an employee's nationality. But the number of visas available for foreign workers has contracted-and sharply. And the time to prepare is now.

While associated with America's high technology sector, the H-1B specialty-occupation visa category is also the workhorse of many ad agencies. It is used for virtually every advertising, marketing and public relations discipline, including account management, art and copy, creative direction, account, media and brand planning, multimedia design and many others.

H-1B status for about 50 years has permitted qualified foreign-born, nonimmigrant professionals to work for U.S. employers on a temporary basis in a specialty occupation. But in the post-9/11 environment, agencies hiring foreign nationals are about to face two U.S. immigration issues that pose a challenge.

First, the cap on the number of new H-1B visa petitions that may be approved has been reduced by over 50% for the year that ends next Sept. 30-to 65,000 from 195,000. We expect that number will be exhausted sometime between March and May of 2004. After that, employers will not be able to hire new H-1Bs until the start of the new federal fiscal year, next Oct. 1-unless the prospective employee is currently working in H-1B status for another employer or Congress raises the cap.

Second, the Department of Homeland Security's Bureau of Citizenship and Immigration Service (CIS), formerly the benefits arm of the Immigration and Naturalization Service (INS), has been taking an increasingly restrictive view of eligibility for H-1B status for advertising positions.

Over the years, INS regularly recognized many ad positions as H-1B eligible. For example, the INS consistently approved H-1B petitions for account-management professionals with bachelor's degrees in advertising, marketing or communications, art directors with degrees in graphic design or fine arts, and account planners with psychology, sociology or marketing degrees.

These former "slam dunks" are no longer a sure thing. New immigration examiners are not fully familiar with the advertising industry, and the more experienced examiners seem to be searching for reasons to deny petitions in this more-restrictive climate.

With the new lower cap on visa numbers, strategic planning is critical. Since it is uncertain when or whether Congress will act to address the cap, we recommend agencies seeking to obtain H-1B status for employees or potential hires file new H-1B petitions starting now, in the first few months of this fiscal year.

If an agency employs a foreign student recently graduated from a U.S. university in a professional position (for instance, as an assistant account executive or assistant art director), it should consider changing his or her status to H-1B now to secure a number. This will require giving up valuable optional practical training but ensures the agency secures an H-1B number (and status) for this employee (and avoids a gap in employment authorization).

When the visa cap is reached, agencies must wait for the start of the new fiscal year (for more H-1B numbers) or consider other visa statuses: the O-1 (for individuals with extraordinary ability), the J-1 (trainees), the L-1 (intracompany transferees) or the TN (certain Mexican and Canadian professionals).

Existing visa holders

Agencies also may consider hiring professionals that already hold H-1B status and are working for a competitor. In this circumstance, a petition has to be filed with the CIS, but does not require a new H-1B number.

For an H-1B filing to succeed, it must detail the duties of the position with great specificity, and carefully relate the potential employee's academic coursework (and major) to these duties. Another method of strengthening a petition is to submit evidence that bachelor's degrees in a specific discipline are regularly required by the industry for a given position.

Agencies should also consider getting experiential evaluations when the degree of an individual is not directly relevant to the position. As a general rule, three years of progressive work experience may be substituted for each year of university that is lacking.

Many corporate-immigration practitioners believe the market should determine the need for H-1B professionals and that foreign nationals have made major contributions in many U.S. industries, including advertising, marketing and public relations. We hope Congress will act quickly to increase the H-1B cap to a more realistic number. In the meantime, planning and wise immigration counsel are more important than ever.

Mark D. Koestler, attorney and partner in the corporate immigration practice at Bryan Cave, New York, represents Omnicom Group's DDB Worldwide Communication Group, Interpublic Group of Cos. and Grey Global Group.

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