The H-1B visa is a popular vehicle for allowing foreign nationals to temporarily perform specialty occupations in the United States. Currently, 65,000 visas are allocated annually to the H-1B category. There are also an additional 20,000 visas allowed for foreign nations who have earned a U.S. Master's degree. Last year, the number of regular H-1B visa applications received on the first few days of filing was more than twice the annual cap and a lottery system was instituted to determine who received the visas. The Master's degree visas ran out by the end of April 2007. The 2008 supply will likely be exhausted just as quickly. Thus, now that the April 1 filing deadline has passed, employers seeking to hire foreign nationals to work in the United States must consider alternatives to the H-1B visa, unless their petition is exempt from the quota.
Certain H-1B petitions are not subject to the H-1B cap, such as extensions of H-1B status, amended H-1B petitions and H-1B portability petitions. In addition, H-1B visas for nonprofit organizations or entities related to or affiliated with an institution of higher education, nonprofit research organizations, and governmental research organizations are not subject to the cap. These H-1B visas may be filed regardless of whether the cap has been reached. However, non-profit service, community, policy and arts organizations do not qualify for the cap exemption. It is best to speak to an immigration attorney if you have questions as to whether your organization fits into one of these categories.
A common substitute for the H-1B visa is the L-1 visa, for Intracompany Transferees who are executives or managers of related companies, or who possess specialized knowledge. To qualify as an Intracompany Transferee, the employee must have worked for the company outside the United States for at least one continuous year in the past three years. Accordingly, the L-1 is only a viable alternative if your U.S. company is related to a foreign entity. The benefits to an L-1 visa, in contrast to the H-1B, are that there is no annual cap, labor certification and prevailing wage request are not required, and blanket petitions are permitted. In contrast to the H-1B, which may be extended in certain situations beyond the six year limit if a Green Card is in process, the L-1 cannot be extended beyond either the five year limit for a specialized knowledge employee, or beyond the seven year limit for an executive or manager.
Another alternative to the H-1B visa is TN status, which permits certain professional workers from Canada and Mexico to live and work in the United States for one-year periods. The TN is renewable indefinitely, in one-year increments. This visa is based on the North American Free Trade Agreement (NAFTA), and the alien must fit into one of the professions specifically enumerated by NAFTA to be eligible for the TN. Admissible workers under the TN include, for example, architects, accountants, engineers, attorneys, systems analysts, management consultants, scientists, and graphic artists.
For employees who are students or "exchange visitors" (i.e. interns, trainees or researchers), the F-1 or J-1 visa may allow the student to remain in the U.S. under work status. The F-1 visa permits foreign students studying at a United States educational institution to apply to remain and work for an additional year at a United States company. This is known as Optional Practical Training.
The J-1 visa is also designed to allow a foreign national to receive workplace training, however it requires sponsorship by a government-designated exchange program. Under the J-1, companies may either proceed through an existing program or apply to run their own J program. A drawback to the J-1 is that in many cases, there is a two-year home residence requirement when the J-1 visa expires, that must be either be complied with or petitioned to be removed.
Another option is to pursue either the E-1 or E-2 visa for an employee who is engaged in trade or investment between the United States and a foreign nation. To qualify for an E visa, a treaty must exist between the United States and the foreign country, and both the employee and the trading or investing company must be a citizen of that country. This visa tends to be useful for U.S. subsidiaries of foreign parents. E visas are not subject to a cap, and the period of stay may be extended indefinitely.
For business visitors arriving in the U.S. to work on behalf of a foreign company who remain on that company's payroll, the B-1 visa is often an appropriate choice. While the authorized period of stay varies from a few weeks to a year, a business visitor is generally only granted a period of entry necessary to conduct his or her business. Legitimate business conducted under a B-1 visa should involve international trade or commerce. It is important to remember that B-1 visa holders may not engage in productive employment in the U.S.; in other words, the person may not receive a salary the U.S. employer. Typical examples of B-1 activities include attending business conferences and seminars, consulting, soliciting clients, and conducting market or product research.
Finally, the O-1 visa is often a useful alternative where the foreign national seeking entry is truly outstanding in the sciences, arts, education, business, or athletics. The O-1 visa is reserved for those with extraordinary ability who have achieved sustained national or international acclaim and recognition in their field. While there is no annual cap on O-1 visas, this high threshold effectively limits the number of people issued O-1 visas each year.
The visas described above are some of the most common alternatives to the H-1B visa. Each unique situation will require a close examination of the employee's qualifications and the employer's objectives in order to determine the best visa for bringing the foreign worker to the United States.
This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice. Your receipt of Good Company or any of its individual articles does not create an attorney-client relationship between you and Sheehan Phinney Bass + Green or the Sheehan Phinney Capitol Group. The opinions expressed in Good Company are those of the authors of the specific articles.
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