H-1B Visa Options Before April 1, 2012 Cap (Part 2)

Visa Options In Lieu of H1B Visa

Porter Law Office, LLC represents individuals and businesses with all aspects of employment immigration, including H1B visas. As an immigration lawyer, Matthew R. Porter provides frequent updates to H1B employers to assist with HR planning. Part one of this H-1B blog discussed the general considerations in visa options when dealing with the H1B cap.  If you are still looking to temporarily hire a foreign national on an H1B visa for an H1B cap visa, consider one of following H1B visa alternative visa options.  

• B-1 in Lieu of H1B

The B-1 in lieu of H1B visa is available to foreign nationals who have an overseas employer that plan to perform H1B-caliber work or training and will be paid only by their foreign employer, except reimbursement of incidental travel costs such as housing and per diem.  A key requirement is that the foreign national must not receive salary from a U.S. source; the foreign worker must be paid directly by the overseas employer. These foreign nationals would be admitted as B1 visitors, and may only stay in the U.S. for the time allotted by the CBP upon entry. Generally, these are very limited in duration (often six months or less). 

The Result: This can be a good visa option to fill an immediate employment need where a foreign company will pay the foreign national's wages.  However, it is fairly limited and is less flexible than an H1B visa, but it can allow for a U.S. company to get to know the worker to make an informed decision to hire that worker on H1B.

• B-1 in Lieu of H-3

Employers requiring their overseas employees to undergo temporary, job-related training in the U.S., may consider the B-1 "Business Visa" in lieu of H-3.  Generally, this visa is available to foreign nationals coming temporarily to the United States to receive training (other than graduate or medical education training) that is not available in their home country.  A host company must provide a letter describing, with particularity, an itinerary of the training schedule while in the U.S. 

The Result: This visa can be very useful in that it allows a foreign national to remain in the U.S. up to a year, so long as the training is properly documented. 

• E-2 Treaty Investor Visas

The E-2 Treaty Investor visa is available to foreign nationals entering the U.S. solely to direct and control the operations of an enterprise that they have invested or are actively in the process of investing a substantial amount of capital. You must be from a Treaty Country and have invested, or are in the process of investing substantial capital into the enterprise.  Once you obtain the E-2 visa, you will be allowed to remain in the US for five years at a time, extendable indefinitely. 

The Result:  The E-2 visa is renewable forever and the amount of capital can be relatively small (in one case it was as little as $30,000).  A major drawback is that you cannot apply for a green card because the visa does not allow for "dual intent."  The H1B vis on the other hand does.

• E-3 Visas for Citizens of Australia

If you are a citizen of Australia, you can qualify for the E-3 visa. The requirements for the E-3 visa are the same as for the H1B visa, in that the E-3 can only be used to employ professionals coming to the U.S. to fill professional positions that require a bachelor's degree or equivalent in a related field.

The Result: Australians can utilize the E-3 visa if their time on H1B has run out.

• H1B1 Visas for Citizens of Singapore and Chile

There are 6,800 H1B1 visas out of the total 65,000 H1B visas withheld for foreign nationals from Singapore and Chile, meaning that the H1B cap is actually 58,200.  These visas were established as part the US-Chile and US-Singapore Free Trade Agreements. Employers can file H1B1 petitions to employ nationals of Singapore and Chile until the cap is reached.  I will keep you updated on the cap count for H1B1 visa.  Simply contact me and I will email you the most recent data.  The H1B1 visa, like the H1B visa, is used to employ professionals with a bachelor's degree or higher in the field in which they are being hired. 

The Result: Very similar to the H1B but more narrow.  Generally if you were looking to hire someone from Singapore or Chile you would have likely utilized this visa category.

• TNs for Citizens of Canada and Mexico

The TN status is just that, a status.  It is not a visa.  The TN status was created under the provisions of the North American Free Trade Agreement ("NAFTA") to facilitate movement of business professionals between Canada, Mexico, and the U.S. There is not TN cap or minimum wage requirement.  The major limitation on the TN classification is that it is only available for professional occupations listed under NAFTA.  In addition, employers can only request TN classification for a one-year period for the foreign worker, although it can be renewed indefinitely in one-year increments.  For more information, visit the Department of State website.

The Result:  Often a secondary choice to an H1B visa, yet still very viable to fill an immediate need.

• L-1 Visa for Intra-Company Transferees

The L-1 visa allows executives or managers (L-1A), or employees with specialized knowledge (L-1B) to enter the United States generally for three years.  To qualify for the L-1, a foreign worker must have been continuously employed abroad for at least one of the past three years by a subsidiary, affiliate, branch, or joint venture of a US company.

The Result: like an H1B visa, the L-1 visa allows "dual intent."  This means that an L-1 visa holder may pursue his or her green card once in the US.  The L-1 visa, however, has become increasingly difficult to obtain due to USCIS's concern over fraud so any L-1 visa petition must be carefully considered by the employer and attorney prior to filing.

• O-1 Visa

The  O-1 visa is my favorite visa classification.  It is for those individuals with extraordinary ability in science, sports, and business and distinguished ability in the arts/entertainment. This means that extraordinary professors can obtain O-1 visa becuase of their abilitiy in the sciences, which includes social sciences such as economics.  The O-1 visa can be a great feather in a foreign national's cap and are not generally as difficult as obtaining the EB-1 alien of extraordinary ability green card (although the laws for both are identical). 

The Result:  The O-1 visa is a great temporary visa, but does not allow dual intent.  If you are on an O-1 visa, or are considering it, but are concerned over your ability to file for a green card, contact an immigration lawyer to discuss your options.

• H-3 Trainee

The H-3 visa is for those foreign nationals coming to the US to engage in a training program that is not available in that person's foreign country.  Certain egg farmers come to the US as H-3 trainees to learn egg farming in the US, which is a highly sophisticated and productive egg farming country.  The training must assist the employee to qualify for employment outside the U.S.  In other words, the trainee must intend to return home after the training is completed.

The Result:  Like the B-1 business visitor visa, the H-3 trainee visa is very temporary in duration and the training schedule must be fully documented.

• J-1 Trainee

The J-1 visa is for an advanced student or professional to learn about another culture as an exchange visitor in the US. Under the J-1 trainee or intern programs, you can spend up to 18 months in the professional setting of an American host company, learning and utilizing new skills related to your degree or career.

The Result:  If you are interested in utilizing the J-1 visa program, contact me today and I will put you contact with an approved exchange visitor program, the American Immigration Counsel.

Other Considerations
In addition to seeking these other work visa options, employers should also consider the following:

• Begin thinking about filing an H1B visa for upcoming cap season, which begins on April 1, 2012.  Early planning is important because you never know when the cap will be reached.   
• If your employee is working on F-1 or J-1 OPT (optional practical training), and his or her OPT will expire after April 1st but before October 1st, you must think about filing the H1B as soon as possible even though the worker will not begin until October 1st.  This is because a bona fide, non-frivolous H1B petition will extend the OPT until October 1st, under the "cap gap" provisions, allowing the foreign national to remain in the US during that period. 
• Starting the permanent immigration ("green card") process for employees as early in the process as possible.  This process can be started through the PERM labor certification process or the filing of an I-140 immigrant petition. This strategy is optimal in cases when the I-485 Application for Adjustment of Status can be filed concurrently with the immigrant petition since the applicant can also file an application for work authorization pursuant to the I-485 application.

Until Congress passes comprehensive immigration reform, increasing the amount of H1B visas allowed, the H1B cap will not meet the demand such that employers will have to search for alternatives.  Employers must plan early with their immigration counsel to explore options to meet their needs and to ensure that the H1B cap does not hinder their hiring goals and ability to supplement their workforce with professional foreign workers.

Contact Porter Law Office, LLC

Porter Law Office, LLC has experience in navigating the employment-based immigration requirements, including H1B visas. If you have questions regarding your H1B visa alternative options, contact Columbus immigration lawyer Matthew R. Porter today for a free consultation.