A major obstacle facing oil and gas companies is locating, recruiting, and retaining global talent in light of the heightened attention and scrutiny on United States immigration practices. International companies must enhance their recruitment strategies and begin working on the sponsorship process for foreign nationals as far in advance as possible to set realistic timeframes for onboarding. Organizations must take into account the current trend of heighted enforcement activities, complex immigration regulations, cumbersome immigration practices, and the potential for administrative delays in visa issuance.

Today, even with major companies engaging in a lower level of recruitment than in years past, energy companies may find it difficult to hire a sufficient number of workers to fill a wide variety of positions ranging from highly skilled labor to high level managers and executives. Because of these issues, a need exists for employers to engage in strategic planning and creative hiring in order to ensure their labor needs are met. Addressing critical labor shortages within the oil and gas industry is vital to shape an effective recruitment and retention strategy for your organization.

Consider Alternate Visa Options

Most global organizations are familiar with the H-1B visa, the most commonly used visa option for professional workers. Unfortunately, due to the high demand for H-1B visas and the annual numerical limitation, it has become increasingly difficult for companies to meet their hiring needs simply through use of this particular visa option.

The E visa often allows companies to manage global mobility and meet hiring needs. The E-1 and E-2 categories are comprised of treaty traders and treaty investors entitled to be in the United States under a bilateral treaty of commerce and navigation between the United States and the country of which the investor/trader is a citizen or national. In essence, these visa options allow for foreign organizations that maintain subsidiaries in the United States, of which the foreign organization owns more than 50 percent, to sponsor essential workers, specialized skills workers, and professional employees in the United States.

The L-1 visa is another viable option that allows a foreign business to transfer a manager, executive or worker with specialized knowledge to a related entity based in the United States. There must be a qualifying corporate relationship between the United States and foreign entity, and the worker must have been employed abroad with the foreign entity for at least one year within the last three years prior to transferring to the United States. More companies have started to use the L-1 visa category as an alternative means of employing foreign workers in the United States when the annual H-1B visa cap is exhausted; however, United States Citizenship and Immigration Services has increasingly narrowed its interpretation and application of the L-1 regulations to deny approvable L-1 petitions. Employers wanting to use this visa option should work carefully to craft solid visa petitions to ensure global talent transfer.

Finally, the B-1 in lieu of H-1B visa is an often overlooked option for international talent transfers to the United States on a short-term basis. The B-1 visa category traditionally permits foreign individuals to enter the United States for temporary, business-related activities. B-1 business visitors may not engage in productive work while in the United States. A hybrid visa called the “B-1 in lieu of H-1B” recognizes that in some situations, an individual who would otherwise qualify for an H-1B may more appropriately be classified as a B-1 visa applicant when the applicant is coming to the United States temporarily to perform professional duties related to their overseas employment, will not enter the United States labor market, and will remain on their overseas payroll. This visa option, although highly scrutinized at the time visa applications are made overseas, is an option to consider for employers who require the short-term transfer of foreign employees to the United States.

For oil and gas industry companies, the next few years will require innovative approaches to solve immigration issues and ensure that hiring needs can be met through foreign talent acquisition. There is no one-size-fits-all approach, and employers must be proactive in beginning the immigration sponsorship process early, anticipating the various challenges and delays in visa processing, and developing internal plans and programs necessary to recruit and retain foreign talent.

Dilnaz Saleem is of counsel in the Baker Donelson's Houston office, where she focuses her practice on corporate immigration and employment matters. She works closely with local, national and international clients to provide legal advice and counsel in all areas of global immigration. She can be reached at [email protected].