Business Immigration Today: Chris Thorn’s Perspective

By Kelsi Swenson

It’s no surprise that the business immigration sphere, in addition to the rest of the world, experienced some arduous and unprecedented moments over the past couple of years. The coronavirus pandemic coupled with the former presidential administration created a seemingly impenetrable barrier for visa seekers. However, despite a largely dismal 2020, there were small victories against USCIS—from overturning IFRs to refining the definition of specialty occupation, it seems the path to more flexible business immigration regulations is not as inaccessible as believed.

For all the changes happening over the past two years, the future of business immigration is certainly malleable, but also opaque. There are still numerous processing delays, waiting lists, and outdated regulations needing to be addressed and reimagined. The talent and innovation possessed by many of these prospective immigrants is crucial for the United States to continue to evolve and maintain its place as a world leader.

For this piece, Park spoke with Christopher Thorn, the Immigration Practice Chair at Buchanan Ingersoll & Rooney. This piece is an installment in Park’s Attorney Spotlight series.

Q: What has changed the most from the time you entered business immigration to now?

A: I just started my 16^th year of practicing business immigration.  There are days I’m amazed at how much has changed, and there are days I’m amazed at how much hasn’t.  One of the biggest changes for me is how much more sophisticated the immigration consumer has become and how that has impacted the way I practice. Clients, whether individuals or corporations, have more information at their fingertips and are more technologically advanced.  As a result, they expect a higher level of innovation, more value for their money, and greater efficiency. To remain competitive, I’m constantly thinking of new and better ways to meet the needs of my clients, which are frequently being defined by emerging technologies.  The pandemic and need to operate virtually has made the focus on ingenuity even more critical.  An interesting observation I’m finding is that even with all of the advances in technology, clients are placing a greater emphasis on the fundamentals of good client service – being highly responsive and accessible.  I think this probably has something to do with all of the changes and uncertainty that we experienced under the last administration and which we’re continuing to see today.  I think we’ll see a trend towards a more “bespoke” model of providing immigration services – one that feels more personal but still prioritizes efficiency.

Q: What visa types do you, or your firm, typically work with? Have you noticed any new trends?

A: Buchanan currently has immigration teams in Pittsburgh, Philadelphia, Tampa, and Miami.  We handle the full alphabet soup of employment-based visas as well as family-based immigration matters, but my particular practice focuses on business immigration.  I help companies ranging from start-ups to multinational Fortune Global 500 organizations secure temporary TN, H-1B, E-3, L-1, and E-2 visas for their key personnel.  I also prepare all categories of permanent residence filings (e.g., National Interest Waiver, Labor Certification, and Extraordinary Ability).  I have what some would consider a niche expertise handling J-1 waiver/H-1B petitions for foreign national physicians who work in health professional shortage areas.  I’ve recently been handling a number of O-1 and permanent residence filings for models and entertainers as well as P-1s for professional athletes.  I also represent a number of IT consulting companies that have some unique industry-specific immigration considerations.

In terms of trends, we’re certainly seeing an uptick in H-1B transfer filings at the moment given The Great Resignation.  This year’s H-1B lottery had the highest number of employer submissions that we’ve seen in the past several years, so it will be interesting to see if that uptick continues.  Given the talent war companies are facing in the United States and globally, I would not be surprised to see next year’s numbers look even higher. Because the U.S. consular posts have been operating at such limited capacity, we had been seeing a markedly reduced number of L-1 and E-2 applications on behalf of employees working abroad, but those have started to pick back up over the last month or so as visa appointments are slowly starting to become available again.  Effective November 8, 2021, the United States will be ending the country-based entry restrictions which have been in place since March 2020, so I expect we’ll be seeing a significantly higher volume of immigration filings overall in 2022.

Q: What are some changes you hope to see in the upcoming months and years?

A: In the short term, I’d love to see the USCIS processing times improve significantly.  Today, it’s taking USCIS 8.5 to 11 months to adjudicate an I-539 application extending the H-4 or L-2 status for family members.  It’s taking USCIS 7.5 to 13 months to adjudicate an I-765 application for an employment authorization document (EAD).  These delays are causing severe financial burdens on families which are dependent on two incomes because spouses are having to stop work due to the lapse in their U.S. work authorization. If USCIS can’t find a way to improve its processing times, it should allow L-2 and H-4 spouses to receive the automatic 180-day extension of work authorization that is available to EAD applicants in other categories.  I-140 Immigrant Petitions for Multinational Managers and Executives are taking an astounding 12 to 45 months currently, and I-140 petitions for those seeking National Interest Waivers (NIW) are currently taking 12.5 to 29 months.  These permanent residence categories are supposed to be for our “priority workers” whose skills and talents are most important to the United States, yet it can take two years for a decision. In addition to improving its processing times overall, USCIS should finally make the premium processing option available for these I-140 petition categories, as well as for I-539, I-765, and I-131 applications (for travel documents).

In the long term, I’d love to see immigration reform that makes it easier for the United States to attract and retain top global talent.  Other countries, like Canada, are doing a better job of developing immigration programs that make for simpler and faster migration for those with special skills.  Foreign students completing their education in the U.S. are having to leave the country because they can’t get an H-1B under the Cap which is limited to just 85,000 visas per year.  For the most recent fiscal year, there were 308,613 registrations which meant only 28% of those entering the random lottery process were selected.  We can’t afford to lose top talent in a global economy, especially in certain areas such as technology, engineering, and healthcare.

Q: What advice would you give to an international student who wants to stay in the United States to work after they complete their degrees?

A: Firstly, seek to secure a degree in a STEM field if you have the goal of staying in the United States after you graduate. STEM majors are eligible for three years of Optional Practical Training (OPT) while non-STEM majors are only eligible for one year.  This is important when you consider that only 20-30% of students get selected in the H-1B lottery each year.  Having STEM OPT gives you at least two and sometimes three chances of getting selected.  Secondly, focus your job search on employers that have an established immigration program and are enrolled in the E-Verify program.  Only employers enrolled in E-Verify can employ F-1 students on STEM OPT.  Thirdly, focus on positions where the job duties clearly align with your field of study.  Degree and position alignment is a big focus area for USCIS when adjudicating H-1B petitions at the moment.  Fourthly, know your obligations as an F-1 student while in OPT or STEM OPT and educate yourself as much as possible about the H-1B lottery process and timing considerations.  Be mindful of the unemployment restrictions on OPT/STEM OPT. Don’t be afraid to discuss your need for future H-1B sponsorship with a prospective employer but be prepared to sell the fact that your EAD allows you to work without any need for immediate sponsorship (or the related costs). Offer to introduce the company to an immigration attorney or your international student advisor if they have questions about your work eligibility.  Finally, stay confident and focus on all the skills, knowledge, and experience you bring to the table.  Employers are looking for diverse perspectives and you bring that as an international student.

Q: Have you dealt with TN visas? Are you noticing more conversation about them at all?

A: We help clients with TN visa applications all the time.  Because of the H-1B Cap, more companies are starting to leverage TNs since there is no quota and they can be renewed indefinitely.  The application process is also more straightforward since Canadian citizens can apply directly at the land port-of-entry, or a preflight inspection location, and Mexican citizens can apply directly at the consulate.  We do quite a number of TNs under the “Engineer” and “Computer Systems Analyst” categories, but they are increasingly becoming a strategic option for healthcare organizations facing workforce shortages, since registered nurses, physical therapists, occupational therapists, and psychologists are some of the medical professional positions eligible for TN classification.

Q: What’s the most rewarding part of being an immigration attorney?

A: Practicing immigration law fundamentally revolves around people and I’m a “people person.” Whether it’s helping a company develop a strategy to mobilize its global workforce, assisting an investor start a business in the U.S., or helping a family secure U.S. citizenship, each day presents opportunities to positively impact lives.

The past couple of months have been really special because I’ve had clients finally receive their green cards after waiting 10 years.  I can’t personally relate to the experience of being in limbo for such a long period of time and all of the anxieties and difficult emotions that must go with that, but I certainly feel for my clients in those situations.  They consider the U.S. to be their home but don’t have any certainty that they can stay here.  Many of them would face very challenging conditions in their home countries if they were forced to leave the U.S.  The reward for me is knowing that I’ve played even just a small part in helping change someone’s life circumstances for the better.

Christopher Thorn is the Chair of Immigration Practice at Buchanan Ingersoll & Rooney. Currently in his sixteenth year aiding clients in their business immigration process, Chris provides top-tier and customized service to each of his clients and their businesses through analyzing their needs and envisioning the best course of action to take. With experience handling many visa types including, but not limited to, H-1Bs, E, L-1, O-1, TN, PERM, and other specialty visas, Chris is a knowledgeable and extraordinary attorney capable of handling any and all business immigration needs.

For more information about Park’s Attorney Spotlight series, or to express interest in participating, please email [email protected].