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My company is a Delaware C-Corp, though our office is in Florida.

I have been working with 3 talented freelance developers over the past 18 months, during which time they've been in a work-for-hire arrangement. At some point in the near future, I want bring them to the US to work as FT employees for our company.

One is in Egypt, one is in Scotland, another is in India.

This article seems to provide information on the procedure for sponsoring an employment visa: http://smallbusiness.chron.com/sponsor-employment-visa-10445.html

Excerpt:

Launch a recruiting campaign for U.S. workers to fill the position, as directed by the SWA. You must advertise for the employee's position in a local newspaper and interview any interested U.S. applicants. If you find a qualified U.S. applicant, you must abandon the employment visa application process. The purpose of seeking U.S. workers is to ensure that foreign nationals do not take jobs that U.S. workers could perform.

I could undoubtedly find qualified US applicants to fill the positions we would be offering. But applicants:

  • don't have the working relationship I've established with these foreign freelancers over the past 18 months

  • may not actually possess the same competence and dedication that my current team has demonstrated over the course of our working relationship

  • cannot reasonably be expected to work efficiently with what is now 50,000+ lines of code they didn't write

Is there any way to bypass this particular requirement, in light of my longstanding working relationships with these developers?

  • I've heard that by "local" paper, it can be a really local paper aka the weekly rag in a small town near you. – mkennedy Dec 16 '15 at 22:32
  • Not an answer, but have you considered simply making a good-faith effort to follow the law as you understand it? If you don't think you understand the law, that's another matter. Presumably, the law exists on purpose and the intent seems to be to prevent what you're trying to do. I understand it could cost you time and money - many laws frequently do. – Patrick87 Dec 17 '15 at 0:25
  • I don't think this particular law takes into account an existing and substantial working relationship. This is not a situation where a company is seeking to replace established domestic employees, or hire new employees from overseas just to lower costs. The bullet points communicate my concerns, and the rationale behind my resistance to the idea of starting over with a fresh team. I won't even get into my desire to offer an opportunity to people who have worked very hard, as that's more of a personal factor than a business decision. – Nathan Dec 17 '15 at 0:32
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    It sounds like the reasons in your bullet points are reasons why there might not be any U.S. applicants that could fill the position. That's why you need a lawyer to advise you. To advise you if those requirements can be written into the job description at all. And, if so, how to do everything legally so you stay compliant. – Mowzer Dec 17 '15 at 2:47
  • Thanks for your response. Obviously this is something that would need to be handled by our GC (or more likely, an immigration attorney) when the time comes. In the meantime, I prefer to approach any expert with at least some knowledge, for the same reason I try to learn programming concepts to help manage developers. In other words, the "advice" I'm soliciting here is to try to inform and prepare me for a more in-depth discussion with an attorney. I like to have some idea of what I'm talking about, even when dealing with professionals in whom I'm supposed to trust completely. – Nathan Dec 17 '15 at 2:52
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You need an attorney to advise you.

When you speak with your attorney, make sure you are clear and ask her to advise you for the best way to comply with the law and not how to circumvent it.

  • My question could've been more precise. I'm not trying to "circumvent" the law, I'm trying to determine if there is some precedent or mechanism in place whereby companies in this situation (having a substantial established working relationship with a foreign contractor) can legally waive the requirement. The reasons I'm asking this are clear (especially to anyone who has operated in business, and most especially anyone who has managed developers), and I highly doubt mine is the first company to be in such a position. – Nathan Dec 17 '15 at 0:37

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